Definition of Prescriptive Easement

Written by erika johansen
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Definition of Prescriptive Easement
Prescriptive easements are rights to use land, acquired by previous usage. (bike path in the forest image by David Sexton from Fotolia.com)

A prescriptive easement creates a right to use another's land for a specific purpose. The easement is created by making use of the land without owner permission for a period of time specified by statute. Interference with a prescriptive easement gives the easement holder cause to bring suit.

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Easements in General

An easement creates a right to use land that is possessed by another for a specific purpose. One parcel of land, the "dominant tenement," enjoys the benefit of the easement, while the "servient tenement" is the land being used for the easement purpose. Once an easement is validly created, even if not used, it is presumed to be perpetual.

Prescriptive Easement

A prescriptive easement is acquired when the servient tenement is used for a specific purpose, for some time, without the permission of the owner. Through the continuous use and the owner's failure to stop it, the dominant tenement can acquire the right to so use the servient tenement property indefinitely. A prescriptive easement is a type of easement appurtenant, meaning that the holder receives physical use or enjoyment of the property. All who may succeed to title of the dominant tenement will be entitled to the prescriptive easement; the easement need not be mentioned in the conveyance or deed in order to be operative.

Elements

Speaking generally, four legal elements are usually required: adverse use (use of the servient property without permission of the owner); open and notorious use (with no attempt at concealment); continuous use for the entire statutory period (required statutory periods vary among states, but the minimum is five years); and hostility, meaning that the easement user knows he has no right to use the property. However, individual states' easement laws may display variations, and those with easement issues should consult a legal professional.

Exclusive Use

Jurisdictions are split on whether a prescriptive easement requires that adverse use of the property be exclusive in order to fulfil the legal element. A minority of jurisdictions will not allow a prescriptive easement if other parties besides the dominant tenement have also been using the servient tenement adversely for the same use. However, most do not require exclusive use, only that the dominant tenement's right to adversely use the easment "does not depend on a like right in others". In other words, the dominant tenement may still get the prescriptive easement even if the owner or others are also using the tenement in a similar manner.

Termination of Easement

An owner may prevent establishment of a prescriptive easement by effectively ending the dominant tenement's adverse use; this can be accomplished by bringing suit or physically ejecting the easement user from the property. Easements can also be terminated in several ways: the easement holder can release the servient tenement from the easement; the dominant and servient tenement can merge ownership; or the servient tenement can be condemned. The servient tenement may also invalidate the easement by a sort of "reverse prescription," if the servient tenement uses the easement for a long time and the easement holder "sleeps on his rights."

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