Prescriptive easement: In’s and out’s

Prescriptive easement originated from the practice of using private property as a passage to reach a neighboring property. As this right became more formalized and established, it was eventually given the legal term “easement.”

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What is a prescriptive easement?

A prescriptive easement is a legal right to use another person’s property for a specific purpose. Such as accessing a neighboring property or using a piece of property. This right is obtained by regular, open, and continuous use of the property without the owner’s permission for a specified period. This is common in rural areas.

The period required to establish a prescriptive easement varies by jurisdiction. Usually ranges from five to twenty years.

Once the easement is established, the owner of the property must allow the easement holder to continue to use the property for the specified purpose. They are often used in cases where a landowner has been using a portion of a neighbor’s property for a long time and wishes to establish a legal right to continue to do so.

Is it the same for all the states?

Prescriptive easements are generally recognized in all states in the United States. However, the specific laws and requirements for establishing it are different from state to state. Each state has its own statute of limitations for establishing an easement, and the specific requirements for proving open, notorious, continuous, and adverse use of the property may also differ. In addition, the scope and duration may be limited by state law. Therefore, if you need to establish or defend an easement, it is important to consult with an attorney who is familiar with the laws and regulations of your particular state.

What is a prescriptive easement in New York?

Open and Visible

It must be sufficiently visible and apparent so that the property owner is aware that the use is occurring.

Adverse and hostile

The use of the property must be made without the owner’s permission and must not be permissive.

Continuous

For at least ten (10) years without interruption.

Exclusive

Must be exclusive, meaning that the person claiming the easement must be the only person using the property in the manner claimed.

How long is a prescriptive easement in Texas?

It’s crucial to remember that Texas has a ten-year time limit for establishing, just like New York and several other states. Yet, each state has its own unique conditions for creating a prescriptive easement. So, if you need to establish or defend an easement in the state of Texas, you should speak with a lawyer who is knowledgeable about its laws and rules.

What is a prescriptive easement in Florida?

The basic requirements and state laws to apply for a prescriptive easement can be the same in all states. However, the only thing that varies is the application time, which can range from 5 years to 30 years. In the case of the State of Florida, it only takes 7 years to formally apply for an easement.

Read more: Cost of living and investment in Florida

Prescriptive easement requirements

The time limit for obtaining an easement through adverse possession does not begin to run until the applicant enters the land. As a result, because there is no trespasser, a negative easement cannot be acquired by prescription.

Continuous and uninterrupted use must be demonstrated for the period specified by state law. The continuity requirement is likely not met if the use is so infrequent that a reasonable landowner would not bother protesting.

The easement must be used in a way that is actually detrimental to the rights of the original owner of the property through which the easement is sought, and it must be done without the owner’s permission. Possession is not an issue if the landowner has granted permission to use the land.

It is important to note that a prescriptive easement does not appear in title searches. It is only revealed in practice. When purchasing property, the survey and actual fences must line up. Determine if there are signs of open and notorious use by someone other than the owner. The demonstrated use of the property is as important as what is legally recorded in writing.

Written by Vanessa Gallanti. April 10, 2023

Enthusiast about planning, project management, construction materials and technology, and construction. A civil engineer from Los Andes University and a content writer for Kukun.