Types of Prescriptive Easements

By RachelBennett
A prescriptive easement is where the land is used for a specific purpose but the permission of the owner has not been granted.

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An easement is a legal term describing the right to use land that is owned by someone else for a specific purpose. A prescriptive easement is where the land is used for a specific purpose but the permission of the owner has not been granted. The owner fails to stop this use and so the user automatically becomes the dominant tenement. Even if the land is no longer used, this tenement remains valid. Prescriptive easement rights are automatic; they do not need to be written in the land deed to apply. There are a variety of types of prescriptive easement.

Open and Notorious

In and open and notorious easement, the property is openly used without the permission of the owner; no attempt is made to conceal the breach of ownership. In some cases, the user is not aware he is not allowed on the land. Open prescriptive use is not always exclusive to one individual. There can be multiple users of the land at any one time.

Continuous Use

Each state has a different statutory period for residency. Continuous use is where the land is used by the tenement for the entire statutory time. Typically this is five years although it can be as high as 30 years, as in the state of Texas.

Hostile

Hostility describes a deliberate attempt to take the land. The occupier is aware that they do not have land rights, but remains on the property regardless. In Texas, hostile users have been known to stay for 30 years. A common example of a hostile user is a neighbor using land that belongs to you. For example, they could put up a fence several feet on the wrong side of a boundary line. If this is not corrected after a number of years, a permanent prescriptive easement is automatically granted. You can prevent this by granting the neighbor permission to use the land. If you grant permission, you should document this in a letter. If you are unsure how to go about granting land, consult a legal expert.

Easement Termination

Prescriptive easement only applies when the owner of the land makes no attempt to evict the tenant. Consequently, the easement is terminated if the owner physically evicts or condemns the user from the property. Alternatively, the dominant and servient tenement can agree on shared ownership of the property giving both equal rights to the land.

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