What is an easement by prescription?
What are the elements to prove prescriptive easement?
How do you acquire an easement by prescription?
In this article, we will break down the notion of easement by prescription so you know all there is to know about it.
We will look at its legal definition, types of easements, see who can benefit from easement rights, variations of the term, the elements to prove, contrast it with adverse possession and more.
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Table of Contents
Easement by prescription
Easement by prescription is the right legally created in favour of a person who openly uses another’s land or segment of real estate property in an uninterrupted fashion, without the land owner’s express authorization and for a period of time indicated by law.
For example, if a person uses a segment of your land to access the lake for over ten years in an uninterrupted and open fashion, that person can acquire prescriptive easement.
What is a prescriptive easement?
A “prescriptive easement” is when the law grants rights to a non-owner of a property resulting from his or her continual use of the property and the lack of objection of the actual owner of the property.
For example, if your property is by the lake and your neighbours have no other choice but to access the lake using your property, if this continues for many years in an uninterrupted fashion, through the mechanism of prescription by easement, they may access the lake.
The amount of time it will take for prescriptive rights to be created will depend on the laws applicable in the jurisdiction where the real estate property is located.
Prescription easement definition
According to Nolo’s Plain-English Law Dictionary referred to by Cornell Law School, a prescriptive easement is defined as follows:
“A right to use property, acquired by open and obvious use, without the owner’s permission, over a minimum period of time established by state law.”
What’s notable with this definition is that easement by prescription grants a “right to use property” to a person who did not previously have any rights on that property.
Variations of the term
“Prescription by easement” can be referred to in many ways, here are some variations of the phrase:
- Prescriptive easement
- Prescription rights
- Prescriptive rights
- Prescriptive right of way
- An easement by prescription
- Prescriptive easement rights
- Easement prescription
- Easement prescriptive rights
No matter the formulation used, each of the above phrase refers to “easement by prescription”.
Easement by prescription in real estate
To acquire prescriptive rights to use a property, a person must be using the property without the permission of the landowner.
If a landowner has given someone permission to use the land, the usage of the land will not be considered hostile and will not lead to a prescriptive easement.
Therefore, the person who was authorized to use the land cannot invoke any rights on the land with the passing of time.
In real estate, it’s important to be informed as to any potential trespassing on the property you are intending to buy.
The rights granted to a nonpossessor is not altered through the servient land’s change of ownership.
What’s important is that the nonpossession continues to openly use the land, in a hostile and uninterrupted way to be entitled to easement rights.
Who can be granted easement rights?
Anyone trespassing on another’s property can acquire prescriptive easement by continuous use.
For example, the following can acquire easement rights:
- A person
- A company
- A partnership
- Any form of legal entity
- A government
- A neighbor
Types of easements
There are three types of easements:
- Easement in gross
- Easement appurtenant
- Prescriptive easement
Easement in gross
In the case of easement in gross, only one property is involved.
For example, your land offers an easement in gross to the utility company to access the public utility.
Easement appurtenant
The easement appurtenant is a type of easement allowing a person to access the property of another by necessity.
For example, you must necessarily access your property by using your neighbour’s driveway.
Prescriptive easement
A prescriptive easement is when someone acquires usage rights by using your property without your permission for many years.
For example, you have used your neighbour’s land to access the lake for the last 20 years.
You can claim an easement by prescription rights to continue using the land to access the lake.
Easement by prescription elements
What are the elements required to invoke prescriptive easement rights?
In order to derive an easement by prescription, you must:
- Use the property openly and in a notorious way
- Make actual use of the property
- Your use must be hostile
- Your use must be in a continuous way
Open and notorious use
By referring to the open and notorious use of the property, it must be evident and obvious that a person is using another person’s land.
A third party use must be so evident that the open usage of the property serves as the land owner’s legal notice.
On the other hand, if the property owner knows about the third party’s trespassing but does not do anything about it, the element of openness may not matter as such.
Actual use
The actual use of the property is pretty straightforward.
The non-owner of the property or the trespasser must be actually and physically using the land.
The physical use is essential here.
Without physical use of land, a person cannot claim an easement by prescription.
Hostile use
Hostile use means that a person is using another’s real estate property, land or estate in an unauthorized fashion.
Hostile does not necessarily mean that “conflict” in the common sense of the term but an unauthorized usage.
A person must use another’s land, the servient land, in an adverse way to be entitled to claim easement.
If a person uses another’s land with the owner’s permission, that may not be considered as adverse usage.
Continuous use
The final element of prescription by easement relates to the continuous use of the land or property.
Continuous and uninterrupted use is contrasted with sporadic and irregular use.
In other words, the trespasser must be using the servient land repeatedly and continually for a long time.
The law in each jurisdiction will define the length of time a trespasser must continuously use the property to acquire rights by prescription.
In some jurisdictions, it is ten years and more.
Exclusivity of usage
To claim prescriptive easement, the land user does not necessarily need to be the exclusive user.
For example, if your neighbour passes on your property to access the lake, his use must not necessarily need to be exclusive to him.
Others may use the same path to access the lake as well.
As a result, easement by prescription rights do not need to be exclusive.
On the other hand, under adverse possession laws, the use must be exclusive.
The main difference is that under adverse possession doctrine, the trespasser does not merely acquire usage rights but obtains ownership rights and title to the encroached land.
Acquire an easement by prescription
To acquire an easement by prescription, a person must be, intentionally or mistakenly, trespassing on another’s property.
Easement start period
The start of the prescription period starts from the moment the trespasser actually starts trespassing on the land.
If the statute of limitation for a property owner to object to the trespasser’s unauthorized encroachment is 10 years, after that period, the trespasser will acquire rights on the property as if it was his or her own.
Cumulative time
A person must openly use in a hostile and uninterrupted fashion a piece of land to invoke rights of prescription by easement.
What’s important to note is that hostile and open use time periods can be shared by different users.
For example, if prescription by easement produces legal effects after 10 years of usage, imagine that you buy a property from someone who was trespassing on his neighbour’s land for the past 6 years.
If you continue trespassing (knowingly or not) for an additional 4 year period, then you’ll achieve the 10-year mark to acquire usage rights on the land.
In this example, the previous owner’s time adverse possession time cumulatively adds to your adverse possession.
Easement by prescription vs adverse possession
Title on the land
‘Easement by prescription’ grants a person the right to use the land in a certain way but does not grant the trespasser any rights or title to the land.
On the other hand, the adverse possession doctrine is similar in nature whereby the trespasser acquires ownership or title on the land.
For example, if your neighbour encroaches on your land and if you do not object to that, with the passing of time, your neighbour will acquire rights on the encroached parcel of land.
That’s adverse possession.
Exclusivity of use
Another distinction between easement by prescription and adverse possession is that adverse possession requires a person to encroach or trespass exclusively for a certain period of time to obtain rights on the land.
On the other hand, the prescriptive easement is not an exclusive right to one party but can be a right shared by several users.
Example: fence installation
Imagine that you build a fence around your property but incorrectly install the fence several feet outside the perimeter of your land and in your neighbour’s property.
If your neighbour does not object and you use the fence for a sufficient number of years, you will acquire ownership rights on the encroached parcel of land on the basis of adverse possession doctrine.
Easement by prescription example
Let’s look at a few examples where legal rights can be created in favour of a person by easement.
Driveway access
An example of easement by prescription rights can be in the scenario where you use your neighbour’s driveway to access your own.
If your use of your neighbour’s driveway is continuous, hostile and open for many years, you will eventually acquire a right to make a claim for a prescriptive easement.
Lake access
Another example is when you must use your neighbour’s land to access a lake.
If you use your neighbour’s land for many years, openly and in an uninterrupted fashion, without your neighbour’s authorization, after the legally required timeline, you can claim prescriptive easement rights to continue using the land.
Prescriptive easement FAQ’s
How are easements acquired by prescriptions?
Easements are acquired through the substantial use of land or property.
When a person claims easement rights, he or she must demonstrate that there was an actual and important use of the property for the applicable number of years.
Without that, the courts may be hesitant to grant rights to a non-owner.
How to prove an easement?
Prescriptive easements can be proven by demonstrating the following elements:
- A non-owner is actually using a land or real estate property
- The usage is continuous and uninterrupted
- The usage has been hostile and without the permission of the landowner
- The usage was open and evident
How long is an easement by prescription?
In every jurisdiction, the time period required to benefit from prescription rights may vary.
For example, in Massachusetts, you must use the property for more than 20 years.
In Texas, the easement period is 30 years.
In other states, like in Quebec, prescription rights can be acquired after 10 years.
Each jurisdiction will define the easement timelines.
In general, the easement timelines can vary between 5 years to as 30 years.
What is a negative easement?
A negative easement is when the easement holder has the right to prevent a property owner from exercising certain rights.
For example, a negative easement is the right of an easement holder to make sure that his or her neighbour does not block a scenic view.
How to protect your land against prescriptive easements?
To protect your property from prescriptive easements, you must make sure you continually monitor for trespassers.
If someone uses your property, you must object to the use and make sure you document it.
The best practice is to send a letter so you can keep a record of your objection.
You can also post a sign on your property that trespassers are not authorized to use the land and cannot benefit from any easement by prescription rights.
For example, in the state of California, such signs allow landowners to protect their property against easement rights.
