What is an easement by prescription? Definition, Types, & Conditions: A complete guide

If you own a property, you have to keep track of it. Track of its taxes, utilities, and everything that your state obligates you to pay. In cases where you are not able to visit your property or land, you have to appoint someone to look after it. Otherwise, it may be squatted.

Squatting is somewhere a wrongful act by law and the squatters can be thrown out of the property. But there’s a phenomenon called easement by prescription, through which a person can have the right to own your property. What is it and how it is different from adverse possession is discussed briefly in the article today.

What is an easement by prescription?

Easement by prescription is a legal right to favor the person who without any hidden manner uses someone else’s property or a segment of real estate, in an irregular fashion. It does not require a person to have an expression of authorization by the owner, but the possession must be there for the duration indicated by the state laws. 

For instance, if a person uses your area of land to park his car for more than ten years in an open and interrupted fashion, the person can have the easement by prescription or prescriptive easement.

Prescriptive easement

It is defined as when the law provides the right to own a property to a non-owner as a result of his continuous uninterrupted possession and lack of objection by the real owner of the property.

For instance, your neighbor uses your property to access the lake as he has no other choice to access it without using your property. If the system continues for many years through the process of prescriptive easement in an uninterrupted fashion, they may acquire the space and can have the property rights.

The duration of time varies across states. Therefore, the prescriptive rights will be implied according to the legislated jurisdiction laws where the real estate property is accessed.

By Definition:

‘A right to use the property, acquired by obvious use, without the authorization of the property owner for a designated period of time by law’.

Here, the thing which is notable in the definition is the ‘right to use the property, which shows that the person with no prior right on the property in question.

Variation of Easement by prescription

Easement by prescription is referred to in various phrases. Some of them are;

  • Prescriptive easement
  • Prescriptive rights
  • Prescription rights
  • Prescriptive right of way
  • Prescriptive easement rights
  • An easement by prescription
  • Easement prescriptive rights
  • Easement prescription 

Regardless of what you call it, every phrase refers to the right of the property which is granted to the person who uses the property for a certain time.

Easement by prescription in real estate

In order to have prescriptive rights on a property, a person needs to use the property without the permission of the original owner. In the situation where the owner of the property has permitted using such a portion of the land, it will not be considered idle which does not lead to a prescriptive easement.

This is why the person with the permission to use the land for a purpose cannot raise any right no matter how long he used the land. 

In real estate laws, it is crucial to know about the trespassing activities in the property you intend to buy. Because the right to possess the land for a non-owner does not change with the change of ownership.

The thing which is more important here is that the non-possession of the land will be continued to a hostile property in an uninterrupted way to be called an easement by prescription.

Who can grant the easement by prescription rights?

Through continuous use of hostile property, any trespasser can acquire an easement by prescription rights.

For instance, a company, a person, a partnership, a government, a neighbor, and any legal entity with authority.

Types of easement by prescription

Significantly, three types of the prescription easement are there;

  • Easement in gross
  • Easement appurtenant
  • Prescriptive easement

Easement in Gross

The easement in gross allows an individual to use the property of someone else legally. The process will be valid unless the legal property owner holds the property or lives in it to show the ownership.

An individual living in the property can allow anyone to live and use it as per his wish. However, when it comes to an easement in gross, the process is valid for only one property.

How is an easement in gross works?

An easement in gross directly affects the owner and the beneficiary of the property. This means that if a property in question is sold, inherited, or transferred by a beneficiary or a party that did not permit its use initially, the arrangement of easement in gross becomes invalid. The new party is not liable for agreements made before.

In other words, the approved permissions of land usage do not pass to the new owner when the ownership changes in the easement in the gross process. For this, individuals seeking access to the property are required to make a new easement in gross agreement with the new owner.

An easement in the gross agreement is between individuals not the portion of land or property.

Additionally, the person granted permission to use the property does not necessarily need to reside in the nearby location or be the neighbor of the property.

  • Example in Easement in gross

Easement in gross contracts is most commonly used in utility companies. Before someone uses the property, a contract is normally created.

The easement by gross contract enables utility companies to use the property owned by another party for repair and maintenance service. These services are performed to sustain the supply of electricity, telephone, television, natural gas, and internet cable service to the neighborhood and other properties of the area. Such a type of easement in gross is further called utility easement.

Easement appurtenant

An easement that is attached with the land and benefits its owner with a covenant. When the title of the property changes and a new owner holds the property rights it contains the easement appurtenant with the land authority.

The easement appurtenant influences two parcels of the property owned by the different owners. When the parcel of the land:

  • Benefits from easement appurtenant will be called the dominant estate
  • Burdened by an easement, the apprentice will be called servient estate.

Prescriptive Easement

A prescriptive easement as said before is a right to use the property without the permission of the original owner for many years. It is gained through antagonistic means.

A prescriptive easement can only be gained by using someone else’s property for some means. Such as parking or growing a garden but when these conditions are met:

  • Adverse: When there’s someone else’s land
  • Hostile: Usage of the land without the right. If the owner knows and allows it, then it does not lead to a prescriptive easement.
  • Exclusive: The property owner does not possess the land, only the squatter or trespasser does.
  • Notorious and open: The trespasser or the occupier gaining the portion of the land must be occupying the land openly without fencing or hiding what he is doing
  • Uninterrupted: The possession of the land must be interrupted. It should be continued and regular.
  • Continued: The occupation should be continued for a specific limit of time, or the state possession limit. It can be somewhere between 5-30 years.

It gets difficult for someone to prove all the requirements for someone occupying the land of someone else for good reasons. Some only lay claims just because they want it. 

How does a prescriptive easement depreciate property value?

Sometimes a prescriptive easement becomes a big risk for the property owner. This is because it is occupied by hostile means. As prescriptive easement involves one party possession without the owner’s permission when its owner tries to sell the property he might not get the value of the occupied space as he did not know and the property is now having someone else’s rights. It may create an unpleasant situation for the owner of the land just because he does not have a significant part of his land.

Where does prescriptive easement normally occur?

Most rural areas face prescriptive easement problems when the owner of the land doesn’t know that his land may be occupied by someone. This usually occurs when a fence is placed outside the house within the neighbor’s territory. Oftentimes this is not done intentionally but when it comes to utilizing the unauthorized land, it becomes intentional.

Commercial Property

Not only rural but commercial properties were also found affected by the prescription easement. Here’s an example that illustrates the process.

Owners of a Californian restaurant won a 2004 case claiming their right to a prescriptive easement for a neighboring property. According to the claim, the portion of the property has been in the use of the owners since 1974 where they receive truck deliveries. When the restaurant owners sold the property, the neighbor challenged the right of a prescriptive easement. Once the judge learned that the restaurant meets all the criteria, the portion of the land remained even with the new owner as well.

This makes us understand that whenever there’s a sale or purchase of a property involved, you should look for the right of a prescriptive easement. Otherwise, it will not only devalue the property but also limit the use of the sold or purchased property. If a property has a right of prescriptive easement and you already have purchased it, you have to consider it as it has become the legal right of the acquirer.

How servient and dominant estate work in an easement

Taking the restaurant case example from above, we can easily understand the dominant and servient estate terminologies in an easement. They have an important part in the easement methodologies.

In the above example, the Californian restaurant owner owned the right of prescriptive easement that enables him to use the parking lot for its deliveries. Thus, the owner owns the dominant estate of the parking lot which directly benefits the owner.

On the other hand, the property owner of the neighboring area, allowing the restaurant owner to use its property, has the servient estate. This particularly means a property that is serving a neighboring property.

Termination of an easement

Whether it’s a prescriptive easement or any other type of easement, it always involves land or a property with itself. However, the dominant estate can be terminated or released if the acquirer wishes to but the servient cannot.

To terminate the servient easement, the owner of the servient property must file a lawsuit to release its servient estate and should seek a trial. And then again, it can be either a successful or lost servient case. In the restaurant example, the servient estate was lost.

Difference between a prescriptive easement vs Adverse possession

The conditions needed for a prescriptive easement (hostile, open and notorious, exclusive, adverse, uninterrupted, and continued) are required for the adverse possession as well.

The major difference between a prescriptive easement and an adverse possession is the right and ownership. In adverse possession, a person can claim the right of ownership after a state-designated time, while in the prescriptive easement, it only involves the right to use the property for a purpose, it does not allow to own the land.

The main idea of generating adverse possession law is that usable land is scarce. If the property owner does not use his land and doesn’t care to check and visit his land enough for years and years, he should give the land to someone willing to keep it in a better way.

The process of creating an easement

There are three different ways by which an easement can be created.

  • By agreement: When two parties agree that one party will allow the other party to use the portion of his land for a certain purpose, it is called an easement by agreement. Sometimes, people pay the owner of the property to use their land. Common examples of easement by the agreement include easement by necessity and utility easements. When someone needs to access the driveway to reach their own land for instance.
  • By adverse use:  The use of someone’s land without them knowing (prescriptive easement).
  • By condemning proceedings: This kind of easement happens when the government uses private property for providing public service via eminent domain.

Is Easement similar to a license?

Easement and license are somewhere different from each other. The difference between them is that the license belongs to a person while an easement accords a land.

For instance, when two neighbors know each other. A neighbor having a fishing pond allows other neighbors to use its fishing pond to fish. The fishing pond owner gives the license to the neighbor to use his land. This license between neighbors can be written and verbal.

If the neighbor with a license moves from the place, the new neighbor would not have the license to use the fishing pond. This is because the license belongs to the person, not to the land.

On the other hand, when a fishing pond is a neighborhood property, the only way to get there is by using someone else’s land. Here easement would be granted which is attached to the land. This means no matter who lives on the dominant land, the easement would be continued if the previous owner moves as it attaches to the land.

How to avoid buying land without a prescriptive easement

Certain measures can be taken to avoid buying land without a prescriptive easement. Firstly, when you want to buy a property, survey it properly and inspect every boundary and look for the signs for trespassers and fences around it.

This can be investigated by roaming around the land, interviewing neighbors, and looking at the aerial views. Another way to protect and secure yourself from having land without an easement is to buy title insurance. If you learn after buying the land that it has a prescriptive easement and you have bought the title insurance, the insurer will pay for the damage.

The Bottom Line

It’s essential to observe all the possible possessions and easements whenever you opt for buying a property. Because if there were, they could significantly lower the value of the property and will depreciate with time.

Keep in mind that looking for an easement in the property isn’t always easy. Since the possession is uncovered and unregistered. Knowing and understanding the prescription easement, how it works, and how you can protect yourself from it can bring a better position for you if someone is claiming a prescriptive easement on your property or if you want to claim an easement by prescription on someone else’s property.

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