Easement by prescription refers to the situation when you can acquire the right to use the property of someone else by making continual use of it for a specific time. The time to claim these rights can differ per the laws of different Jurisdictions.
For example, if a person uses your property as a passage to a river situated nearby, he can become entitled to these rights by making that use for a set period. A person can claim these rights only if he is making that use without your permission.
According to US Legal, Easement by prescription refers to an easement created by the open, notorious, uninterrupted, hostile, and adverse use of another’s land for a period set by statute.
If you do not object to the navigation of such a person in your property for the timelines prescribed in the possession laws, then easement by a prescription becomes effective. The common easement by prescription example is from rural areas where owners often fail to notice the use of properties.
If your neighbor starts using the portion of your land without your notice, then he can claim the rights of easement after completing a specific time limit. A situation may arise where the owner of the property, known as the servient estate owner, sues the dominant estate owner and loses the lawsuits.
Key points vital for Easement by Prescription
- Parties such as a person, partnership, legal entity, government organizations, or company are eligible to acquire the easement rights.
- The third party should use the property without the consent or authorization of the property owner.
- The timelines to determine the invoking of such rights can differ as per laws under a different jurisdiction.
- The right granted to the trespasser does not transfer the ownership of the property. However, he can continue his use.
- It is not necessary to make exclusive use of the property to claim the prescriptive easement. If multiple persons are sharing the same passage, you can still claim these rights.
- The prescription period starts the moment when the trespasser starts making the actual use of the property.
- Different users can share the period of actual use. If you buy property from a person who was using the neighboring land for the passage for five years and the legal period of easement by prescription is ten years, you can invoke the easement by using that property for the next five years.
Easement by Prescription Elements
Certain elements are essential to gain the rights for a prescriptive easement. To better understand this term, you need to know the actual scenarios that can invoke these rights.
- Open usage of the Property – By open utilization, we mean to say that your usage in the property of a third person should be in the notice of the owner and the other neighbors. Notorious use of the property of another person for a specific period is essential to get these rights. Even if the property owner knows about your usage and does not do anything about it, you can get these rights. In some jurisdictions, this period is about ten years and more.
- Actual use of property – To become eligible for these rights, it is a must that there is the actual use of the property. By actual use, we mean to say that you must make physical use of the property by trespassing without permission. Even if the property owner knows about your trespassing and does not bother about it can invite prescriptive easement.
- Nature of your users must be hostile – It is one of the essential things required for the prescriptive easement. If you are using the property of a third person with his permission then, this will not contribute to these rights. The use of the property by you must be without any authorization of the property owner.
- There must be continuous use of property or its parts – State laws demand the usage of other’s property for long periods ranging from ten to twenty years. The period of continuous use can differ in different jurisdictions. Being a trespasser, you should make a repeated and continual use of the property for a long time.
Protecting your properties from Prescriptive Easements
If you want to protect your properties from the prescriptive easements, take notice of any adverse use of your property on priority. If you fail to do a settlement with the trespasser then, you should hire a good lawyer to file title lawsuits to claim back your property. It is vital to take necessary actions before the completion of the period that can invoke the prescriptive easements.
