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What is a Prescriptive Easement

A prescriptive easement refers to rights a person may gain when using another person’s property without permission or co-ownership. Legally this is considered trespassing until the person is given permission or obtains the legal rights.

Prescriptive easement claims generally occur when there is a property line dispute between neighbors. Often these disputes are over fences that are on the wrong side of the property lines. There are also many situations where someone can claim prescriptive easement on your land, such as utility companies running water or power lines.

Read below to find out more about prescriptive easements.

Requirements for claiming a prescriptive easement

The trespasser cannot claim prescriptive easement until they begin to use the property of another. Once the trespasser proves they have a legitimate use of another’s property, the prescriptive easement claim may be considered viable. In some states, the trespasser must verify they believe they possess ownership rights to the property in question. To satisfy many state requirements of prescriptive easement, a trespasser must prove the following

  • Continuous use of the land
  • Used the land openly, in front of the land owner 
  • Used the land for the state required amount of timeThe landowner did not contest or give permission to the trespasser for the use of the land

Prescriptive easement categories

Most prescriptive easement claims occur when there is a battle of two property owners over the boundary lines between their land. In most cases, prescriptive easement occurs when the landowner doesn’t realize someone is using their land. But, there is a situation where a person, or city or government entity can claim prescriptive easement on a land owner’s property, without asking permission.

Prescriptive easement by property use. If a person is unwittingly using someone else’s property, with the thoughts that it was their own, they can apply for prescriptive easement rights. The unwitting trespasser must prove they believed the property was their own, and prove they have used the property without objection or permission of the property owner for a set period.

Prescriptive easements for utility companies. Utility easements are the most common form of an easement. They do not affect the way a landowner chooses to use their property. These easements are in place so utility companies can run water, gas or electric line to everyone by use of each property.

The main way a utility easement may affect a landowner is if utility lines become damaged due to fault or negligence of the landowner. For this reason, many states require landowners to call Dig Right before digging on the property to find out where the utility lines are running.

If a utility company carelessly damages someone’s property, the landowner may be entitled to receive payment.

Private prescriptive easements. A private easement is a clause, often written in a land deed or title of ownership. It states that the landowner may be required to sell a portion of the land for purposes of utility or road access. Private easements are most often used for access roads to beaches or fields.

Prescriptive easement by necessity. A necessary easement is when someone must pass through another land owner’s property, to reach their own. A person may claim an easement by necessity if passing through someone else’s property is the only way they can access their land.

Tacking prescriptive easement time requirement

Prescriptive easement time calculation, also called tacking, is when several parties share the rights to the land. Tacking land is something often done on farmlands so that farmers can share the land to plant at different times.

Property owner’s rights

There are several ways a property owner can protect their property rights.

A rental agreement. If the property owner gives the trespasser the option to rent the property, and the trespasser agrees, then the trespasser can no longer claim prescriptive easement. If the trespasser refuses a rental agreement, they still are not eligible for an easement and must vacate the property to avoid legal action. The rental agreement is used as evidence if the trespasser does not comply with the owner’s wishes.

Contact the police. If the trespasser declines the rent option and will not leave, the landowner can then call law enforcement to remove him or her.

File suit against the trespasser. If the trespasser tries claiming prescriptive easement the owner can file suit to gain a court order to remove the trespasser from their land.

Trespassers rights for a prescriptive easement

The trespasser has the right to occupy the property if he or she can prove they used the property for the required amount of time set by the resident state. The trespasser must also prove that within that period, the landowner did not agree to the use or offer a rental agreement. In some states, the trespasser may also be required to prove they believed they to be the owner of the land.

Prescriptive easement by hostile claim

When it comes to prescriptive easements, the word hostile doesn’t mean the trespasser took the land by aggravated force. In this instance, hostile can have two definitions. One definition is called the “Main Rule,” the other is called the “Connecticut Rule.”

The Main Rule defines hostile as being a person who knows he or she is trespassing; however, still claims prescriptive easement because they used the property for a certain amount of time.

The Connecticut Rule refers to a person who occupied the land without knowing the property was someone else’s. Under this definition, the trespasser can claim a prescriptive easement by good faith. By claiming good faith, the trespasser believes they owned the land, therefore used it for their purposes.

The meaning of actual and open and notorious land possession

Actual possession. A trespasser cannot simply claim rights to someone else’s land. The trespasser must show proof they are in possession of the land and use it as if it were their own.

Open and notorious. The trespasser’s use of the property must be in the open, and not hidden from the owner.

An example of an actual or open and notorious trespasser is someone who builds a fence three foot over the neighbor’s property line. The neighbor can see the fence is being built on his side, but neglects to contest within the time frame prescribed by their state.

Claiming exclusive and continuous possession

The trespasser must prove they were the only ones who used the land, without disruption of the owner for the state prescribed the length of time. Within this time frame, the trespasser cannot abandon or stop using the land.

Who pays property taxes

In many states, the trespasser is required to show proof of taxes paid on the real estate property before they can claim prescriptive easement. In some cases, a trial court may grant a prescriptive easement to a trespasser, if the trespasser has proof of all other requirements for the easement.

Protecting your land from trespassers

There are several ways landowners can protect themselves from losing land to a prescriptive easement.

Read the fine print. Before purchasing land, read the fine print on the deed or title. If there is a prescriptive easement clause, ask an Expert to explain what it means. 

Have your land zoned. By having the land surveyed, you can put up fences to prevent neighbors from accidently putting a fence on or drive on your land.

Put up signs. Posting private property or no trespassing signs gives landowners legal protection from trespassers claiming possession by easement by prescription.

Check your property. Landowners who check their property often, have a greater chance of finding and putting a stop to people trespassing on their property.

When you purchase your property, it is not usually in the forefront of your mind that someone else could have rights to using it. However, without taking the necessary precautions and securing your property could lead to just that. Or, if you have been unwittingly using someone else’s property, you may need to know your rights. Legal Experts are available to answer any questions regarding prescriptive easements. 

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