Does My Neighbor Have a Prescriptive Easement?

An easement is a property right letting someone use another person’s property for a specific purpose. The easement holder does not own the land over which the easement travels. The owner of the land on which the easement occurs remains the owner and pays the property taxes. Typically, the use of the easement is to access a road or another part of the easement holder’s own property.

Most property owners know that their use of the property is subject to an easement because the easement is written into their property title documents, such as the 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, based on the law of adverse possession of an ownership interest.

How Do You Establish a Prescriptive Easement?

The law for determining if a neighbor’s land has a prescriptive easement is the same as the law for adverse possession. The difference is that instead of focusing on possession, the easement holder’s adverse use of the land will be examined.

Prescriptive Easement vs. Adverse Possession

The law on adverse possession contains four general factors the adverse possessor or prescriptive easement holder must prove. The burden is on the prescriptive easement holder to prove that the use of the neighboring property has been:

1. Open

The use of the property is out in the open for all to see, especially the actual owner of the property.

2. Exclusive

The easement user cannot share the easement with others, including the actual owner of the land.

3. Continuous

The individual must use the easement for a certain period of time without stop or break. 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, and continuous manner for a 10-year period and the current owner has continued that use for five more years, the current owner can meet the 15-year requirement for continuous use.

4. Under a Claim of Ownership

The easement user cannot have permission from the actual owner of the land, whether informally or through a license to use the right of way or other written agreement.

What To Do if Suspect a Prescriptive Easement Claim

Not all prescriptive easement holders are trying to steal land. Some may be relying on an innocent mistake; other homeowners 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.

Find Experienced Legal Help for Your Easement Dispute

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 real estate attorney right away to evaluate their claim.

For more information on this area, check out our overview of real estate laws.