The Prescriptive Easement Law

Written by erika johansen
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The Prescriptive Easement Law
One landowner must use another's land for a certain period of time to create a prescriptive easement. (The Path image by mcAronas from Fotolia.com)

Easements are real estate interests that give one landowner the right to use another landowner's land for a specific purpose. A prescriptive easement arises when a landowner makes use of another's land for so long that the easement becomes law. The specific requirements for a prescriptive easement vary by state; those with questions about a particular easement should consult a legal professional.

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Easement Law

Easements arise between two pieces of land. One piece of land, the dominant tenement, has the right to make specific use of the other piece of land, the servient tenement. Each jurisdiction has its own body of law dealing with easements, either in that state's Civil Code or Real Estate Code. However, most states' prescriptive easement law has certain elements in common.

Prescriptive Easement

A prescriptive easement arises in much the same manner as adverse possession, or "squatters' rights." When the owners of the dominant tenement make a certain use of servient tenement for a long enough period of time, that use becomes established under law as a prescriptive easement. Once the dominant tenement receives a prescriptive easement, all subsequent owners of that dominant tenement will have the right to enjoy the easement as well, until the easement is somehow terminated. Easements do not have any inherent time limit; they're generally presumed to last indefinitely until they are somehow terminated.

Creating the Easement

Most states require a common set of elements to create a prescriptive easement. Parties must use the servient tenement property adversely, meaning without the owner's permission. The use must be hostile, meaning that the dominant tenement owner knows he has no legal right to use the servient property. He must use the property openly and notoriously, with no attempt at concealing his use. And, finally, the use must be continuous, for a period of years mandated by each state's statute. Most states require some statutory period between 5 and 10 years. A few states also require that the dominant tenement owner's use be exclusive, meaning that no other non-owner parties also use the servient tenement property in the same manner during the statutory period. Note, however, that if the servient tenement owner is in prison, is a government entity, is underage or mentally incapacitated, then the law will not recognise a prescriptive easement.

Terminating the Easement

Different states' laws vary in the methods by which an prescriptive easement can terminate. If the dominant tenement has not used the servient tenement for the required statutory period, then the servient tenement owner can physically prevent the dominant tenement's use or can bring an ejectment suit to keep him from the property. Easements always terminate when the dominant and servient tenements come into the hands of the same owner, or the government condemns the servient tenement. The dominant tenement owner may also choose to legally release the servient tenement from the easement. If the dominant tenement doesn't use the easement for a considerable period of time (specified by individual state statute), then the dominant tenement may lose the easement due to the lack of use.

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