A prescriptive easement is created when a person or business gains the right to use someone else’s property through regular property use. The easement is not in writing and is not negotiated between the involved parties. Property boundary encroachments are one means by which a prescriptive easement is created.
Establishing a Prescriptive Easement
A prescriptive easement does not result in the loss of property ownership unlike an adverse possession. In an adverse possession the encroaching person actually gains property title. In a prescriptive easement the person gains the right to use the property but never the right to own it.
A prescriptive easement develops over time as patterns of use develop. The use of the property must be open and obvious. The use must be without the property owner’s permission. The property owner must still be able to use the property.
State laws vary as to how many years of continuous use are required to claim a prescriptive easement exists. In many of the states the property use must be continuous for 5 years but some states have a longer requirement. It doesn’t matter if the use was unintentional either. For example, someone may not know they are landscaping past a boundary line.
Encroaching on Property
Encroaching on property is one way that prescriptive easements are created. There are different ways someone can encroach on property.
- Expanding existing structures over the boundary line
- Building a fence on another person’s property
- Building or placing a structure on someone else’s property
- Landscaping that extends over a property line
The difference between an encroachment and other property uses is that the encroachment does not require a pattern of travel like someone regularly driving across property.
Respond to Encroachments Quickly
The best approach is to prevent a property encroachment in the first place. Clearly it is important to address encroachments quickly and not let too much time pass. Prescriptive easements must be claimed by the encroacher and once validated it can be passed to future buyers. This can have a significant impact on the value of your property if the encroachment limits the use of the property or is seen as a property burden by potential buyers.
There are a number of ways to respond to an encroachment.
- Have the property re-surveyed and then send a letter to the encroacher asking for removal of the encroachment or giving specific property use permission
- Post signs that directly state the right to property use is subject to owner control
- Create an agreement in writing
- Block the encroachment
- Sue the encroacher
Consult an Attorney
If you discover someone has encroached on your property, it is important to contact an attorney to get assistance resolving the matter. Prescriptive easement laws vary from state to state. How you respond to the easement is crucial to protecting your future rights.