Easement by Prescription Lawyers

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 What Is An Easement?

As a legal term, “easement” refers to the legal right to use another person’s real property. This use must be for a specific purpose, as well as a specific amount of time. An easement provides a person with the legal right to go through another person’s land, so long as the usage is consistent with the specified easement restrictions.

Although an easement grants a possessory interest in the land for a specific purpose, the landowner retains the title to the property. Because easements are associated with real property, they are governed by real property law.

Easements may be given to anyone, such as:

  • Neighbors;
  • Government agencies; and
  • Private parties.

An example of an easement would be if a property owner allows their private road or path to be used for their neighbor’s navigation. Some other common examples of easements include:

  • Public utilities;
  • Power lines; and
  • Cable TV, although these are often located underground.

To reiterate, easements may be granted to a wide variety of people or agencies. If you want to know the location of sewer lines or hidden power lines, the best way to find those public utility easements is to contact your local utility company. However, if you wish to know whether your own property contains an easement, you should contact the County land records office or County Clerk’s office.

Generally speaking, easements are recorded on or attached to the deed for the property that you own. Another place would be city hall. Any easement that is recorded on the title to your property will include a reference number, which a county clerk can then use to locate the original easement document for you to make a copy of.

Are There Different Types Of Easement?

It is important to note that different states may recognize several different types of easements, depending on that state’s specific real property laws. Generally speaking, there are three different types of easements:

  • Easement By Prescription: This type of easement may also be referred to as a prescriptive easement. It is an implied easement that is gained under adverse possession. What this means is that someone other than the property’s original owner gains use or ownership rights to that property. So long as a person has actually used the land or property openly and continuously for a specified amount of time, and without the permission of the owner, they can establish a prescriptive easement. Easement by prescription will be further discussed below;
  • Easement By Necessity: This type of easement is generally created by the law, and not by a specific promise or agreement between neighbors. The law implies the easement’s existence to achieve just results. An example of easement by necessity would be a parcel of land that is considered to be landlocked; or, land that cannot be accessed except by traveling over other property. As such, the law creates an easement by necessity in order to allow the landlocked owner access to their own property by way of the other landowner’s property; and/or
  • Negative Easement: A negative easement creates an obligation or a restriction in which the property’s owner cannot use their own property in a particular way that would otherwise be legal to do so. Negative easements are generally treated as restrictive covenants. An example of this would be if a new condo were being built, and the owners of an existing condo building do not want their ocean view blocked by the new building. A negative easement could address their concern.

Some other examples of types of easement include:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and
  • Easement by estoppel.

What Is Easement By Prescription? What Is Adverse Possession?

As previously mentioned, easement by prescription (or, prescriptive easements) are implied easements that are gained under the principles of a legal process known as “adverse possession.”

Adverse possession is a means in which to obtain land, by occupying it openly and acting as its owner as opposed to buying it. The most common example of adverse possession would be when one person owns undeveloped land that is occupied for a long period of time by another person, without the knowledge of the real owner. However, the occupier of the property must openly occupy it, and act as if they own it.

Easements and adverse possession issues are often associated with title issues. Title refers to legal ownership of property; as such, a person who has title to property generally possesses a deed showing their name as owner. Possession refers to physical occupation of property. An example of this would be how an owner can rent out a house and still retain ownership, while the tenants have a right to occupy the house per the terms of a lease agreement. Another example would be how squatters taking over an abandoned building would give the squatters possession, because they occupy the land, but the owner still has legal title to the property and owns it.

In order for a person to have adverse possession of a property, the person must:

  • Act as the true owner, meaning they must maintain the property, pay taxes, and occupy the property;
  • Openly act as the true owner of the land;
  • Use the property without the consent of the land’s legal owner, and pay no rent; and
  • Maintain this status of open occupation without ownership for a period of time specified by state law, which is generally 10 to 20 years.

Similar to the requirements for adverse possession, an easement by prescription requires that the easement be:

  • Actually used;
  • Open and notorious, meaning openly used or observable;
  • Continuous for the specific amount of time as set by the state; and
  • Adverse or in conflict with the claims of the actual owner.

It is important to note that some jurisdictions presume the element of adverse use, so long as the person actually and openly used the property for the required statutory period.

How Can I Gain Or Claim A Prescriptive Easement?

As previously mentioned, as long as a person has actually used the land or property openly and continuously for the specified amount of time without the permission of the owner, and they have proved the above, they can establish a prescriptive easement.

Whether the easement satisfies the above requirements is considered to be a question of fact. A jury trial can determine whether the person claiming to have the right to a prescriptive easement (or, claimant) actually has a legal right to it.

To that end, establishing a prescriptive easement largely depends on the state in which you live. Generally speaking, courts will grant a prescriptive easement as long as all of the elements described above have been met. However, other courts may be more reluctant to grant the rights to someone else’s land, and as such require substantial use. In order to determine what is required by your state, you should contact a skilled real estate attorney in your state.

How Can I Protect My Land From Prescriptive Easements?

As previously discussed, an easement by necessity is an easement that is created by law, in order to allow a person to have a right of access to their property. If your land is subject to an easement by necessity, you cannot interfere with your neighbor’s use of the easement in order to access their home. Additionally, some utility companies or cities have been granted easements which are recorded in the plat records long before homes were built on the land.

Utility easements are easements which grant the city or a utility company the right to use and access a person’s property, for the purposes of providing public utilities. Utility easements attach to property deeds and pass to all future owners whenever the property is transferred or sold.

In terms of laws regarding prescriptive easements, different states have different laws regarding how to protect your land against them. Generally speaking, landowners should monitor their land in order to ensure that no trespassers are continuously using their property.

If any person is found to be using the land, you need to make it clear that the unpermitted trespasser is unwelcome and must move on. If the trespasser does not, you and the trespasser should try to come to an agreement in writing that describes what rights the squatter has versus the rights of the land owner.

In some states, such as California, all that is required is a sign at the perimeter points of the property that clearly states that, “No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription…”

Do I Need An Attorney For Easement By Prescription?

If you are experiencing issues associated with easement by prescription, you will need to contact an experienced and local property attorney. A local lawyer can help you understand your rights and legal options under your state’s specific laws, and will also be able to represent you in court, as needed.

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