Easement by Prescription
An easement by prescription is a legal right to use another person’s property, which is acquired through continuous and open use of that property without the permission of the owner over a specified period of time, typically defined by state law. This form of easement is often established when the use meets certain conditions set by law, usually including factors such as exclusivity, continuous use, and visibility of the use.
To qualify as an easement by prescription, the claimant’s use of the property must generally be:
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Continuous: The use must be uninterrupted for a specific duration, which varies by jurisdiction, typically ranging from 5 to 20 years. For instance, if a neighbor has consistently used a path across another’s land for ten years, this usage might establish a claim.
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Open and Notorious: The use must be visible and obvious to anyone, including the property owner. This means that the owner should be aware of the use, as it must not be secretive. For example, if someone has been using a driveway that they do not own for several years without attempting to conceal their use, this condition may be satisfied.
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Adverse and Hostile: The use must be without the permission of the property owner. It does not necessarily mean that the use is aggressive; rather, it implies that the user acts as if they have a right to the property.
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Exclusive: The use should be primarily for the benefit of the user and not shared with the general public.
Once established, an easement by prescription grants the user legal rights to continue using the property in the manner they have been doing. However, it is important to note that the original property owner may contest the claim if the conditions for a prescriptive easement are not met or if they can prove that the use was not adverse.
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