Prescriptive Easements on a Property

Easements are rights to use another's real property. Historically, the uses permitted were limited, and the most important uses granted were rights of way and rights concerning flowing water. Generally, easements were for the benefit of adjoining properties, regardless of who the owner was (easement appurtenant), rather than for the benefit of a specific person (easement in gross). Easement rules and regulations vary greatly from state to state, so be sure to consult with your state's laws.

Easements

Easements are nonpossessory interests in another person's land that permits the holder of the easement to use the land in a specific way. Often, easements exist between owners of neighboring properties. Easements were considered property rights at common law and are still considered a type of property interest by most states today. Easements provide benefits. They can provide a pathway across 2 or more parcels of property or allow a person to go and fish in a privately owned pond.

Individuals with easements have a variety of rights, depending on the state. Historically, the courts would usually only enforce 4 types of easements: (1) right-of-way easements, (2) easements of support relating to excavations, (3) "light and air" easements, and (4) easements relating to artificial waterways. Today, courts recognize these original easement categories in addition to modern types.

Prescriptive Easements

There are several types of easements. Easements by prescription (or prescriptive easements) are easements that are implied. They are granted after the benefited property (dominant estate) has used the other property in a hostile, continuous, and open manner for the time period stated in the applicable state law. Prescriptive easements do not require that the individual use the property exclusively. Before becoming legally binding, prescriptive easements have no legal weight and can be broken if the true owner of the property takes action to defend his ownership in the property. However, once the easement is legally binding, easements by prescription have the same legal weight as other written or implied easements.

The requirements for prescriptive easements vary greatly among the states, but there are some elements common to many state laws. These elements include easements that are (1) open and obvious; (2) actual, continuous use of the property; (3) adverse or against the true owner's rights in the property; (4) hostile or in conflict with another's claim to the property; and (5) continuous use for the stated time period (typically between 5 and 30 years).

Importance of Speaking with an Attorney

If you would like more information regarding your state's laws concerning easements, please contact a qualified attorney in your area.

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