Does My Neighbor Have a Prescriptive Easement?

Use these links to jump to different sections:

• The Law on Adverse Possession
• What To Do if Suspect a Prescriptive Easement Claim

If someone has an easement, they have a real property right—a legal right that allows that person to use another’s property for a specific purpose. Although the easement holder has this right, they do not own the land the easement travels over. The other owner, the actual owner of the land that the encroachment occurs upon, remains the owner of that land—and still pays the property taxes. A typical easement is to have use of the easement over another property owner’s land and use the property to access a road or another part of the easement holder’s own property. Most homeowners and property owners are aware that their use of the property is subject to, or has access through, an easement, because the easement is accurately written into their property title documents like a deed or registration of title. However, some easements are not described in title documents, or are mistakenly described in title documents. Or, potentially, the easement only exists in the mind of the alleged claimant. The most common of these unwritten easements is the easement by prescription, an easement based on the Kansas law of adverse possession of an ownership interest.

The Law on Adverse Possession

The law for determining if a neighbor’s land has a prescriptive easement is the same law as adverse possession, except that instead of focusing on possession, the easement holder’s adverse use of the land will be examined. The Kansas law on adverse possession contains four factors the adverse possessor or prescriptive easement holder must prove, and the burden is on the prescriptive easement holder to prove that the use of the neighboring property has been:

• Open—meaning the use is out in the open for all to see, especially the actual owner of the property
• Exclusive—cannot share the easement with others, including the actual owner of the land
• Continuous for a 15-year period—cannot stop or break from usage for a period of time or the 15-year period of time must restart
• Based on a claim knowingly adverse or under a belief of ownership—cannot have permission of the actual owner of the land whether informally or through, for example, a license to use the right of way or other written agreement

A person claiming a prescriptive easement may use tacking to extend their period of use. Tacking means they may “tack on” the period of time used by a previous owner. For example, if a previous owner used the easement in an open, exclusive, continuous manner for 10 years and the current owner has continued that use for five more years, the current owner can meet the 15-year requirement for continuous use.

What To Do if Suspect a Prescriptive Easement Claim

Not all prescriptive easement holders are attempting to steal land; some may be relying on an innocent mistake and may be left with useless land without the easement. Prescriptive easement claims are fact-specific, meaning the person claiming the easement must demonstrate specific conduct that satisfies each of the elements in the law. That easement holder must also prove those elements clearly and convincingly. That makes a claim for a prescriptive easement very difficult to prove—courts don’t want to be seen as making it easy to give real property away. Some landowners suspecting an easement claim by a neighbor may be able to resolve the situation with peaceful, self-help—either requesting the trespasser stop their use, or provide permission to the trespasser for their use. However, dealing with a prescriptive easement is a complex legal matter, often requiring expert analysis of title records going back 100 or more years. Those on either side of a prescriptive easement claim should contact an experienced Kansas real estate attorney right away to evaluate their claim. For more information on this area, check out our overview of real estate laws.