Do You Know the Difference Between Prescriptive Easement vs Adverse Possession?

You might be wondering if your neighbor has the right to access your property without your permission and if they do, when does it become their property instead of yours? Understanding the difference between prescriptive easement vs adverse possession can be tricky.

It is important to understand that the landowner does not get a Prescriptive easement. This is reserved for the person who doesn’t own the land and wants to use it. Adverse possession is when someone believes that the land is their own, or acquires land in the attempt of gaining the title.

What is an Easement?

An Easement gives another person or entity the right to use or access part of your property with or without your permission. You may or not agree with the easement, but it is generally part of the title and conveys with the property when you purchase it.

Usually, the permitted use is not unlimited. There are guidelines are reasons associated. Some reasons might make sense, others may seem unreasonable or downright strange.

The Easement Holder usually has a reason for the claim, and it’s not always bad. In fact, adverse use situations are actually pretty rare.

When you are buying a house, the title company will provide you with a survey which should have any easements marked on it, as well as a copy of the title description which will also describe any such claims in detail.

However there are some situations where the Easement isn’t in writing – these prescriptive easements are implied – meaning they aren’t written down anywhere.

Are Easements Bad?

As a property owner, you might think easements are bad. You are purchasing some real property (that’s a legal term), and you want control over it.

There are lots of examples of “good” easements – for instance when a utility company needs access to cables or pipes underground to make sure utilities work.

Another kind of easement is when you have permission to walk across someone’s property to access a beach or park. Easements go both ways.

What is an example of a Prescriptive Easement?

A prescriptive easement is one where someone continually uses property without permission. This typically happens in more rural areas where the landowner doesn’t notice that an individual is doing this. There is no written agreement granting permission.

This may happen because the person using the property needs to access something that can only be gotten to by going across land that isn’t theirs. 

This can often result in boundary disputes, and if they go on for long enough without any adverse possession claims, the trespasser could get the land, but only if certain conditions are met.

How can I stop a Prescriptive Easement?

The first step is to ask the person to stop. You don’t want them to make a prescriptive easement claim. For them to claim it there needs several things

  1. visible use
  2. continuous over time. This is the prescriptive period and is usually 10 years.
  3. adverse or hostile to the property rights of the actual landowner
  4. and uninterrupted usage for a period of at least five years, this is a long period of time, also called the statutory period

Most often it is very difficult to stop Prescriptive use – most people won’t take advantage just to get the property, instead, they have a valid need to access your land to get to theirs, or something similar. 

Even if they pay property taxes on your land, that doesn’t mean they will get it. Legal title is the only way.

What is a requirement for making a Prescriptive Easement?

If the 4 requirements above are met, then a court may take the land away from the original owners. One very common example is when a fence is placed in the wrong location, This can result in someone using land that isn’t theirs. There may be a transfer of ownership at something and the previous owner was aware of the situation, but the new owner isn’t, and it just progresses from there. 

Another example is a dirt road connecting one to another adjoining property. 

How do I claim Adverse Possession?

The process to claim Adverse Possession takes a long time. It can take Years or Even Decades and is extremely rare. It is when someone claims that a property is theirs when it originally was not. In many states, the law reads that the land must be peaceably obtained, so not by force.

There are so many different kinds of Easements:

  • Prescriptive Easement
  • Adverse Possession
  • Easement by Necessity
  • Easement by Condemnation
  • Party Easement
  • Appurtenant Easements
  • Easement in Gross
  • Public Easements
  • Private Easements
  • Affirmative Easements
  • Negative Easements
  • Express Easement
  • Implied Easements
  • Easements in Gross

Hopefully, this helped explain a little bit more about prescriptive easement vs adverse possession. For more articles visit my real estate blog.

If you are interested in learning more about any of these, please leave a comment below! And as always this isn’t legal or financial advice, just my opinion, and thoughts on Real Estate. Contact a great real estate attorney if you have specific questions.

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