Types of Prescriptive Easements

A ​prescriptive easement​ is a type of easement that a trespasser can obtain over someone else’s property without the owner’s permission. It is essentially an easement obtained by adverse possession. Easements generally can be ​appurtenant easements​ or ​easements in gross​. An ​easement by prescription​ is simply one way of obtaining an easement, and it can be either appurtenant or in gross, depending upon the nature of the property’s use.

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An easement is the right to use someone else’s property for a specific purpose. Easements can cover anything from the right to hunt on someone else’s property to the right to build a driveway along a neighbor’s lot to access another parcel. The property that has the easement upon it is called the ​burdened estate​ because it bears the “burden” of the easement. That is, it’s the property that’s being used.

Easements are an interest in property, and therefore, easements cannot be unilaterally revoked by the owner of the burdened easement. Easements must also be in writing (although this is different for a prescriptive easement, as described below). Because easements are property interests, they can be sold or transferred (with some exceptions).

Easements are ​distinguishable from licenses​. A license is also the right to use property that belongs to someone else; however, a license is not an interest in property. Instead, a license is simply an ability to take a specific action. Furthermore, a license can be revoked at any time, and the licensee cannot transfer the right to someone else.

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To illustrate license versus easement, if Owner tells her Neighbor that he can drive over her property to reach his own land, and they make no written agreement, she has given him ​license​. He owns no interest in property; he simply has the right to drive over her property until she decides he doesn’t. Neighbor cannot give his right to drive over the property to someone else, and Owner can stop him at any time and tell him he can no longer drive on her land.

If, however, Owner and Neighbor draw up and sign an agreement that he can drive over her land to reach his own, and the document contains language indicating that his right to do so is irrevocable or that also gives Neighbor and his heirs and assigns the same right, a court would likely find that Owner has granted Neighbor an easement. Neighbor can sell or transfer the easement and give the right to use Owner’s land to someone else.

Easements are typically recorded in the county where the property is located, just like deeds and mortgages. Licenses are not recorded, even if they are in writing, because they are not property interests.

Easements can be filtered into two broad categories: ​appurtenant easement​ and ​easement in gross​. Easements appurtenant are said to “run with the land,” while easements in gross are particular to one person or entity. Either type of easement can be a prescriptive easement.

An ​easement appurtenant​ is an easement that not only burdens the burdened estate but also benefits another adjacent property. The easement in the example is an easement appurtenant. Owner’s property is the burdened estate, as it has the “burden” of allowing someone else to drive on it, and Neighbor’s property is the benefited estate, because the easement makes the property accessible.

Easements appurtenant run with the land, which means that if the owner of the burdened property sells the property, the easement goes along with it. If Owner sells her land, the easement goes along with it. The new owner cannot prohibit Neighbor from exercising his right to use the easement.

​Easements in gross​ are easements that burden the burdened estate but do not confer any benefit upon another parcel. Utility companies commonly have easements in gross to run lines. Another common scenario for an easement in gross is the grant of a right to hunt or fish on someone else’s land.

For example, if Owner grants Hunter an easement for the purpose of hunting duck on her property, it’s an easement in gross. It burdens Owner’s land but provides no benefit to any other property; it’s simply a benefit to Hunter personally.

Easements in gross generally cannot be transferred, and they extinguish upon the death of either the property owner or the easement holder. Easements in gross are very similar to licenses, except that they do create an irrevocable property interest. Whether a right to use someone’s land is a license or an easement in gross can become a confusing subject for the courts, and the language of any written instrument is typically the key.

If Owner and Hunter enter into a written agreement that simply says: “Hunter may hunt on Owner’s property,” without additional language, a court may decide Hunter has a license. If the agreement states: “Hunter may hunt on Owner’s property at any time for the rest of his life,” a court may decide Hunter has an easement in gross, because it appears to be irrevocable.

If the right to use land is given verbally and without any written statement, it’s generally a license and not an easement in gross, because grants of interests in land must be in writing.

Easements in gross can be obtained only by express agreement or by prescription; they cannot be obtained by implication.

Easements may be acquired:

• ​Expressly​, by written instrument between the parties. Both easements appurtenant and easements in gross can be created by express agreement.
• ​Implicitly​, if the easement on the burdened estate is necessary for the easement holder to access his property. This may happen if the two lots were at one time the same lot, and the partition made one lot inaccessible without use of the other lot, or if the parties agreed to the easement at the time the lot was divided in two.
• ​Prescriptively​, if the easement holder meets the requirements.

​Prescriptive easements​ are easements obtained by ​adverse possession​. Adverse possession is an old principal of law that allows a squatter or trespasser to take ownership of another property in very limited circumstances.

Prescriptive easements can be either appurtenant or in gross; ​prescription​ is simply a method for obtaining an easement.

Many states have laws that allow adverse possession and prescriptive easements. The details may differ slightly, but the basic requirements are usually the same:

• The trespasser must use the property in an ​open​ and ​notorious​ way.
• The trespasser must use the property ​exclusively​; if another person or entity is also using the property, even the true owner, the use is not exclusive.
• The trespasser must openly, notoriously and exclusively use the property ​for a specific period of time​ as set forth in the state’s law (usually 10 to 20 years, although it can be less or more; in California, for example, it’s only five years).
• The use must be ​hostile​ to the interests of the true owner.

State laws vary; each state has its own time period, and other requirements may be imposed that are specific to that state.

If the trespasser meets all the criteria under state law, she can file a court action, usually called an ​action to quiet title​, to make herself the official owner of the easement.

Trespasser buys a wooded lot that has access from a large road. She wants to be able to access the property by a different road, but an adjacent lot is between the other road and her lot. She drives on it anyway, on the same path, nearly every day. She eventually puts down gravel to smooth it, and no one else uses it. She never discusses it with Owner, who owns the lot she drives on.

In Trespasser’s state, the time period for prescriptive easements is 10 years, so after 10 years of driving on the driveway, she files an action to quiet title, and the court orders that she has an easement for use of the driveway.

Prescriptive easements can only arise if, at the outside, the use of the land is ​open​ and ​notorious​. The person using the land cannot hide his use of it. If Trespasser in the example above did all her driving under cover of night and went out later to smooth over the tire tracks or do anything else to conceal her activities, her use would not be considered open and notorious.

Similarly, if Owner sees Trespasser make the driveway, and Owner starts using the driveway, the use is not exclusive.

The use of the land must be ​continuous​. The trespasser cannot use the property occasionally or use it for a while and then stop for a few years and start up again. The trespasser must use the property continuously as if it’s her own property.

To use property in a manner ​hostile to the true owner​ is simply to use it ​without permission​. If the use is open and notorious so that the owner could observe the use but says nothing, the use is hostile as long as the owner doesn’t give assent to the use. If Trespasser creates the driveway and Owner confronts her and then agrees that Trespasser can use the driveway, Owner has given Trespasser a license, and Trespasser cannot acquire an interest by prescription.

Once a trespasser has completed all the state’s requirements for a prescriptive easement, she must take further action to protect her interest in the property. In most states, the appropriate action is called an ​action to quiet title​. The trespasser should file the case in the county where the property is located and properly serve the property owner as set forth in the state’s law and rules of civil procedure.

The trespasser will have to show the court that each and every element of easement by prescription has been met, using documentary evidence, photographs, affidavits and any other methods for proving open, notorious and exclusive use, hostile to the true owner, continuously for the statutory period. If the property owner opposes the action, an evidentiary hearing or trial may follow.

If the court reviews all the evidence and agrees that the trespasser has met all the requirements, it will enter a judgment in favor of the trespasser, and the trespasser can record documents with the county showing she has an easement.

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