What Are Prescriptive Easements And Are They A Deal Breaker?

One of the last steps you’ll encounter when you’re in the process of buying a home is the title search. It may seem like a mere formality, but problems revealed by a title search – such as prescriptive easements – can sideline the sale or purchase of a home. Fortunately, in many cases, title problems sound more alarming than they are in reality, and easements generally fall within that category.

That said, it’s still important to understand what a prescriptive easement is and how an easement can impact you as a new homeowner.

What Is A Prescriptive Easement?

A prescriptive easement, also called an “easement by prescription,” is a property right acquired when a person – lawyers call them a trespasser – uses a property they don’t own in a way that’s referred to – again, by lawyers – as “open,” “adverse” and “continuous.” Sometimes you’ll also hear the words “hostile” or “notorious,” which have legal meanings that differ from their meaning in everyday conversation. The trespasser’s use of the property must continue for a period of years as defined by state law.

Easements by prescription are created when a trespasser – a person without an ownership interest in the property and without the permission of the property owner – continually and openly uses a portion of another person’s property for a specific reason, generally as a shortcut or to access an attraction such as a lake or a school. Essentially, the person “earns” the right to continue to use the property in that specific way through continuous use over a period of time.

An Example Of An Easement By Prescription In Practice

It’s much easier to understand prescriptive easements if you consider the classic example of a shortcut across a property that children use to get to school. No one asked the long-time property owner for permission; the children have just seemingly engaged in this practice for as far back as anyone can remember.

Now let’s assume the house is sold to a new homeowner who erects a fence that cuts off access to the shortcut. The schoolchildren could assert a claim that they had a prescriptive easement on the property that prevents the new owner from erecting a fence or other obstruction to the shortcut. If they’re successful, that easement would be recorded with the deed and turn up in a title search.

 Here’s how the law would evaluate this situation:

• Open and notorious use: If the owner was aware that children were using their property, and the entire school community seemed to be aware that they should use this shortcut year in and year out, then the use of the property was notorious.
• Continuous use: Although school children didn’t use the path during the summer, they returned every year when school reopened. Therefore, the use was “continuous” – even taking into account the summer break.
• Adverse or hostile use: Historically, the law considers any nonpermissive use of property by a trespasser to be an adverse or hostile use. All a homeowner must do to thwart the creation of the easement is to give their explicit permission for the use of the property before the easement is created by the passage of time. If the homeowner knew of the trespassing and did nothing to stop it, it’s an adverse use.

Prescriptive Easement Vs. Adverse Possession: What’s The Difference?

A prescriptive easement is a property right – held by someone besides the property owner – to use a property in a very specific way. With adverse possession, the trespasser uses the property in a way typically reserved for property owners in the same open, notorious and continuous manner discussed above. If they comply with state laws on adverse possession, the trespasser becomes the outright owner of the property.

This most frequently happens in rural areas, when a landowner fails to notice their property being used. One example of adverse possession is a neighbor constructing a fence on the land. If this encroachment isn’t noticed or addressed within a certain period of time, the neighbor may establish their ownership of the land they’ve been encroaching on.

The rules concerning how adverse possession occurs and how long it takes can vary widely based on state law. It’s best to consult a real estate attorney immediately if you’re involved in an easement dispute.

Are Prescriptive Easements Good Or Bad?

Whether prescriptive easements are good or bad depends entirely on the perspective of the homeowner. If you find that the existence of an easement makes the property unattractive, you’ll be glad you learned about it before buying the home. But even if the easement does no harm to the property, knowing about it ahead of time can help you with a couple of key considerations.

Purchase Price

You may be able to use the easement to negotiate a last-minute price adjustment or another concession from the seller. Of course, if you sell the property later on, you may be asked for a similar discount.

Liability

If there’s a dangerous condition on your property, you may be held liable if someone is injured because of it. The extent of your liability will depend on the laws of your state. You may want to consider additional insurance coverage for general liability in the event a trespasser suffers an injury on your property.

Is An Easement By Prescription A Deal Breaker When You’re Purchasing A Property?

Generally speaking, easements that show up in title searches are no major cause for alarm. .However, when an easement is discovered, you should discuss the matter with the real estate attorney handling your closing and make sure you completely understand how the easement may affect your use of and plans for the property.

It’s important to understand that prescriptive easements are attached to the deed. This means that whoever owns the property must not prevent a person’s exercise of the easement.

If you’re someone who values your privacy, you might not want to proceed with the purchase of a home that allows strangers access to your property every day. On the other hand, if the incursion on your property seems minimal, it might not be a concern to you going forward.

How To Avoid Prescriptive Easements

Avoiding a prescriptive easement is easier than removing an established prescriptive easement. A property owner or new home buyer can avoid a prescriptive easement in one of two ways.

Preventing Your Property From Being Used

The easiest way to avoid a prescriptive easement is to stop the trespasser from ever using your property to begin with. If a school is opening in your neighborhood and you’re concerned that students will be cutting across your property, you can put up a fence to prevent a claim of right from ever developing.

Providing Your Consent

The other way to avoid a claim of right is to give your consent to those who use the property. Just post a sign that says, “Private property. Permission to cross land is revocable at any time.” This simple measure defeats the prescriptive easement requirement that the use is hostile or adverse.

The Bottom Line: The Law Prefers Active Use Of Property

Real property law encourages landowners to use their property productively and has a “use-it-or-lose-it” attitude toward homeowners who don’t pay attention to how their land is being utilized and by whom. Courts recognize easements as a property right earned by the user who attaches to the land, potentially creating an issue when you go to sell the home.

If you’re beginning the home buying process, learn more about legal issues that affect homeownership.