Acquire Easements by Prescription

A person may acquire an easement by using the servient land a particular way for a long period of time. Such an easement is called a prescriptive easement. The user gets an easement by openly, adversely, continuously, and exclusively using the land for a number of years specified by state statute.

Acquiring an easement by prescription today is similar to acquiring title to land by adverse possession. The difference is simply that if the adverse use doesn’t amount to possession but is merely the use of the servient land, the adverse user acquires an easement to continue that use rather than complete ownership of the land.

Open and notorious use of the servient land

The claimant must have used the land as if he had an easement, in a way that was open and apparent to the servient owner. That way, the servient owner should be aware that the claimant is using her land and can bring a claim to eject him if she believes he doesn’t own an easement.

In fact, if the owner of the servient land actually knows about the use of her land, it shouldn’t matter whether the use is visible.

Only physical uses of the servient land can create prescriptive easements. You can’t get a negative easement, such as an easement preserving views or light and air, by prescription.

Adverse use of the servient land

The claimant must act as if he has the right to use the servient land—in other words, as if he has an easement. If the claimant uses the land simply because the owner gave him revocable permission, the use is not adverse.

In general, open and continuous use of another’s property is presumed to be adverse. However, courts often say that use of unfenced, undeveloped land is presumed to be by permission of the owner. Maybe that’s because they assume that if an owner doesn’t fence her land, she’s telling everyone that she’s neighborly and doesn’t mind people using her land while she isn’t doing much with it.

Or maybe courts figure that an owner of such land shouldn’t have to be as diligent in watching for adverse uses, because she’s leaving it open and not developing it—by presuming others’ use to be permissive, others are much less likely to obtain prescriptive easements over her land.

Although adverse use is sometimes described as “hostile” use, the use doesn’t have to be hostile in the sense that the owner of the land opposes the use. The use simply needs to reflect a claim to an easement.

If the parties intend to create an easement but it’s void because of the statute of frauds, for example, the dominant tenant who uses the easement is acting under a claim of right, adversely to the servient tenant’s title, even though the servient owner doesn’t oppose the use because she, too, intended to grant the dominant tenant an easement.

However, you should know that some courts have reasoned that in such cases, the agreement creates a license, and therefore the use is permissive.

If the claimant uses the land adversely, as if he has a claim of right, the owner can’t make the use permissive simply by telling the user that she gives him permission. The owner knows about the adverse claim and must take action to resolve the dispute within the statutory limitations period.

However, some states say that an owner can declare a use to be permissive, such as by posting signs giving permission, and thereby avoid creation of a prescriptive easement.

Continuous and uninterrupted use

The prescriptive use must be continuous and uninterrupted. That means that the user makes use of the claimed easement in a way that is regular and normal for the type of easement claimed, rather than occasional and sporadic. It also means that neither the servient owner nor anyone else stops the prescriptive use during the required period of time.

Merely objecting to the use doesn’t interrupt the use. Nor does unsuccessfully trying to stop the use.

Exclusive use

Sometimes courts say that the use must be exclusive, which is also a requirement for the analogous doctrine of adverse possession. But an easement holder doesn’t generally have the right to exclude others from the land. The servient owner can continue to use the servient land as long as she doesn’t interfere with the use of the easement.

If this is a requirement for a prescriptive easement, it means only something similar to the requirement that the use be uninterrupted. An easement holder has the right to prevent others from interfering with his use of the easement, so if he does prevent others from interfering, then he has used the easement as exclusively as he can.

But if he simply uses the land along with the public generally, then he doesn’t acquire a prescriptive easement.

Use for the statutory limitations period

All states have statutes specifying a time period within which a person must bring an action to eject a trespasser and regain possession of land; after that time period has passed, she loses her right to bring such a claim. The time periods generally range from 5 to 20 years.

To obtain a prescriptive easement, the claimant must prove that he satisfied the elements for a prescriptive easement for the specified number of years. He acquires an easement as soon as he has done so, regardless of whether he continues to satisfy the elements thereafter.

The statute of limitations doesn’t run against the government, so a person can’t get a prescriptive easement over government-owned land.

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