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How Does One Acquire an Easement by Prescription?

While many people have heard about acquiring easements by prescription, they may not be readily familiar with the required elements. For starters, a prescriptive easement isn’t available at a pharmacy.

A prescriptive easement arises when one person unlawfully infringes on the rights of another property owner. If the property owner fails to interfere with the person’s use of his or her property, a prescriptive easement may be created. In order to acquire a prescriptive easement, a claimant must establish (1) that the use was continuous for five years; (2) the use was open, notorious and clearly visible to the owner of the property; and (3) the use was hostile and adverse to the owner.

To acquire a prescriptive easement, the easement must be used continuously and without interruption for a minimum of five years. The actual use depends on the type of easement. An easement need not be used every day during the five year period. The use is sufficient if it is consistent with the needs of the user. For example, a road easement may be used three times per week, once each week, sporadically, or occasionally as needed.

In addition, the use must be sufficiently visible, open and notorious so that anyone viewing the property would discover the easement. This includes being observable enough that the property owner has actual or constructive notice of the use and an opportunity to take the necessary steps to prevent the adverse use from creating a right to a prescriptive easement for the user.

Lastly, the use must be hostile and adverse to the rights of the owner of the real property. The use is hostile and adverse if the user has no legal right to use the real property and the use is without the permission of the owner. The burden to prove each of the elements necessary to establish the prescriptive easement is on the user claiming the prescriptive easement.

If all of the elements of a prescriptive easement can be established, a claimant then acquires a legal right to the easement. However, a prescriptive easement cannot be acquired on real property owned by a federal, state or local governmental agency.  Interpreting and applying the required elements for the creation of a prescriptive easement can be tricky, so it’s important to have experienced counsel. Carmel & Naccasha frequently assists clients with these types of real property issues, so please contact us if you need help protecting or asserting your rights.

Heather Whitham is a partner at Carmel & Naccasha LLP whose practice focuses primarily on representing public agency clients. Heather can be reached through her email address which can be found on her biography page or at 805-546-8785.