A prescription is a method of securing an easement (right to use the real estate or a portion of it for a particular purpose) through unapproved use over a period of time. A common easement by prescription is a right of way like a walkway.
Much like the requirements for adverse possession, an easement by prescription requires that the easement be:
If the requirements of actual use, open and continuous for the statutory period are met, some jurisdiction will presume the element of adverse use to find for an easement by prescription.
Title to an easement is given when all of the elements for prescription have been met. Therefore, if the owner takes no legal steps to end another person¿s use during the prescription period, then the owner cannot lawfully interfere with that use.
The clock starts when all of the requirements for an easement by prescription are met, but stops when one of the requirements is not met during the prescriptive period.
However, if the property owner gives another permission to use the easement, then the requirement for adverse use is not met and would end the prescriptive period. In this case, the easement converts into a different type called a license.
Because sitting back might cost you property rights, contacting a real estate attorney in your area is wise when you think someone may be attempting to retain your easement by prescription. A lawyer can initiate the necessary legal steps like setting up a quiet title action, making sure your interest is properly recorded or representing your interests against adverse users to ensure that your property interest is protected.
Last Modified: 04-19-2018 12:22 AM PDTLaw Library Disclaimer
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