How is a prescriptive easement made? Does someone have to commit adverse possession?
A prescriptive easement is the right to use another’s property, established by adverse use of the property for a period in excess of five years without a claim of ownership. Further, prescriptive easements are similar to taking adverse possession, but not exactly the same.
For example, consider a property owner who has used the roadway of an adjoining property to access their vacation home for over five years. The owner has never received permission from the neighbor to use the roadway.
The neighbor sells their property to a buyer who informs the owner they may no longer use the roadway. The owner claims their open and continuous use of the road to access their property for more than five years entitles them to a right-of-way easement over the adjoining property.
Is the owner entitled to a roadway easement over the adjoining property owned by the buyer?
Yes! A prescriptive easement is established by the adverse use of another’s property for a period in excess of five years. [Thomson v. Dypvik (1985) 174 CA3d 329]
An easement created by prescription is similar to acquiring land by adverse possession. The difference is prescription establishes the right to mere use of another’s property, whereas adverse possession is an actual taking of exclusive possession under a claim of ownership and the payment of all property taxes.
To meet the legal requirements for acquiring an easement by prescription, the adverse use needs to be:
- obvious enough to give the owner of the property notice of the use;
- a continuous and uninterrupted pattern of use;
- a use unauthorized by the owner of the property;
- used under a claim of right; and
- used for a period of five or more years without the owner acting to terminate the adverse use.
The five-year requirement of uninterrupted use continues with the transfer of the benefitting property to new owner(s) as long as the new owner(s) continues the same unauthorized use of the burdened adjoining property established by the previous owner, called tacking. [Jones v. Young (1957) 147 CA2d 496]
A property owner who has fulfilled the requirements for a prescriptive easement but has not filed paperwork or taken legal action on the easement does not waive their rights to the prescriptive easement. [Connolly et al. v. Trabue et al. (2012) 204 CA4th 1154]
A prescriptive easement does not bar an owner of property burdened by the easement from all use of their land. To obtain the exclusive use and possession of real estate, a claim for adverse possession needs to be pursued which, unlike a prescriptive easement, requires the payment of liens and taxes on the property by the adverse possessor. [See first tuesday Realtipedia, Legal Aspects of Real Estate, Chapter 14 “Creating an easement”]