Easements are a right given to another person or entity to trespass upon or use land owned by somebody else. Easements can be granted to neighbors, government agencies, or any other non-property owner.
Easement by prescription, also known as prescriptive easements, are implied easements that are gained under principles of a legal process known as “adverse possession.”
Pursuant to adverse possession, someone other than the original property owner gains use or ownership rights to certain property.
Much like the requirements for adverse possession, an easement by prescription requires that the easement be:
- Actually used;
- Open and notorious (openly used or observable);
- Continuous for the specific period of time set by the state (generally anywhere between five to twenty years); and
- Adverse or in conflict with the claims of the actual owner.
It’s 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.
So long as a person has actually used land or property openly and continuously for the specified time period without the permission of the owner, and he has proved the above, he can establish a prescriptive easement.
Whether the easement satisfies the above requirements is considered a question of fact. A jury trial can determine whether the person claiming to have the right to a prescriptive easement (claimant) has a legal right to it.
Establishing a prescriptive easement depends on the state where you reside. Many courts will grant a prescriptive easement so long as all the elements described above are met.
Notwithstanding, other courts are more reluctant to grant the rights to someone else’s land, and therefore require substantial use. To determine what is required in your state, contact a skilled real estate attorney in your state.
Different states have different laws regarding prescriptive easements and how to protect your land against them. Generally, landowners should monitor their land to make sure no trespassers are continuously using their property.
If any person is found using the land, the owner needs to make it clear that the unpermitted trespasser is unwelcome and must move. If the trespasser doesn’t listen, the trespasser and landowner 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…”
Contacting a local real estate attorney is your best shot at retaining your property rights if you have a squatter on your land. 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.