What is a prescriptive easement? A prescriptive easement gives someone else the right to utilize land without the owner’s consent. On rural property, prescriptive easements frequently develop when a neighbor uses a portion of a property, without the awareness of the landowners.
For instance, frequently prescriptive easements develops as a result of fences placed incorrectly. A person may be able to “derive an easement by prescription” if they use another person’s real property for longer than permitted under state rules on adverse possession (also known as the statute of limitations period). In other words, you develop a right to use the land legally.
An Actual Illustration Of A Prescriptive Easement
If you use the standard illustration of a child using a shortcut through a property to get to school, it becomes much clearer what’s going on. Nobody ever requested permission from the long-time property owner; they just seemed to do it for as long as anyone could recall.
Let’s imagine that a new owner purchases a home. He construct a fence to barricade the shortcut. The students might argue that they have a legal right to a prescriptive easement on the land that forbids the new owner from building a fence or another barrier to the shortcut. If they succeed, the easement is listed with the deed and can be found through a title search.
Let’s examine how the law might assess this circumstance:-
Open-ended and infamous use
The use of the property was infamous if the owner was aware that kids were utilizing it and if the entire school community consistently showed signs of knowing that they should employ this shortcut.
Even though they didn’t utilize the trail over the summer, students came back every year when classes resumed. Therefore, even with the summer break, there remained ongoing use.
Harmful or Negative Use
In the past, laws have regarded any unauthorized use of the property by trespassers as unfavorable or hostile usage. The only thing a homeowner needs to do to prevent the creation of the easement is to expressly permit usage of the land before the easement is established.
A negative use is one in which the homeowner was aware of the trespass but did nothing to prevent it.
Guidelines for Avoiding Prescriptive Easements
It is simpler to prevent a prescriptive easement than to get rid of an existing one. A property owner or a potential homebuyer might stay away from them in two ways.
The simplest solution is to prevent the intruder from ever entering your home in the first place. If a school is set up in your area and you’re worried that children will be trespassing on your land, you can erect a fence to stop any potential claims of ownership.
Giving your permission to others who utilize the property is another technique to fend off a claim of ownership. Simply display a sign reading “Private property. Land crossing authorization can be revoked at any moment”. The straightforward action nullifies the prescriptive easement requirement when the use gets unfriendly or unfavorable.
“Tackling” the Required Time
Consider purchasing a property with a side entrance. You have to pass through a portion of your neighbor’s property in order to access the side entrance. The neighbour never gave you access Access to the piece of property. You will continue the unfavorable use if you continue to enter through the side entry as the previous owners did.
The time accumulates to satisfy the necessary amount of time for adverse occupancy in situations like these, where successive parties in the same position on the land continue to use the right of way adversely.
It is termed “tacking” in this circumstance. Therefore, there is no requirement for an exclusive prescriptive easement. It may eventually extend to numerous users.
What’s the distinction between a prescriptive easement and adverse possession?
In our case, kids own a prescriptive easement, which is a property right that allows them to use a piece of land for a very specified purpose—getting to and from school. The owner of the property subject to this prescriptive easement did not give permission to the public to utilize the shortcut. On the other hand, schoolchildren lack permission to use the property for any other purpose.
With adverse possession, the trespasser utilizes the land in the same open, notorious, and continuous manner that we mentioned previously. They use it in a way normally and only reserved for property owners, such as by erecting a fence to keep out trespassers or cattle. The trespasser takes full ownership of the property if they adhere to state laws on adverse possession.
In rural locations, this frequently occurs when a person uses a property without the knowledge of the landowner. The building of a fence on the property by a neighbor is one instance of adverse possession. The neighbor may claim ownership of the land they have been encroaching on if this encroachment isn’t recognized or addressed within a specific amount of time.
Every state has a different set of laws that govern how adverse possession arises and how long it takes. Speak with a real estate lawyer right away as soon as you involve in an easement issue.
Is a prescription easement a Deal-Breaker when buying real estate?
In general, easements that appear in title searches are nothing to be concerned about. In fact, practically every residence in the United States has at least one, and possibly many, easements on their land.
When you find an easement, though, you should speak with the real estate lawyer about the situation and make sure you fully comprehend how it affects your plans for and usage of the land.
Prescriptive easements are a part of the deed, and you need to understand this point. It follows that whoever owns the property cannot prevent someone from using the easement.
Prescriptive easement: advantages and disadvantages
Objectively, you cannot rate prescriptive easements as good or bad. Some believe they are beneficial since they tend to lessen disputes between neighbors. Others believe they are negative since they can lower the home’s value. Homeowners may get compensation for the use of their property in several states, but the sum is typically small.
Despite the existence of a prescriptive easement, it’s crucial for homeowners to keep in mind that they may incur liability for any mishaps, injuries, or property losses that take place on their property. The agreement should include naming you as an extra insured if you are granted a license to prevent a prescriptive easement.
Landowners must realize that inactivity results in the loss of land rights, just as with adverse possession. If you own land that you do not use or visit frequently, you must set up a system by which you review the actions of your neighbors and other people to ensure that you are not losing valuable rights. Just like with any other investment, you must show intelligent vigilance if you wish to protect its value. In the event that any person violates your rights, you must move swiftly and aggressively in court.