Legal Definitions - easement by prescription

An easement by prescription is a legal concept that allows an individual or entity to acquire the right to use a portion of another person's property, even without the property owner's explicit permission. This right is established through long-term, continuous, open, and unchallenged use of the land.

Essentially, it's a way to gain a limited right to use someone else's property, similar to how one might gain ownership through adverse possession, but in this case, it's only a right to use, not to own. For a court to grant an easement by prescription, several conditions must typically be met:

• The use must be open and notorious, meaning it was visible and obvious enough that the property owner should reasonably have been aware of it.
• The use must be continuous for a specific period defined by state law, which can range from several years to over two decades.
• The use must be adverse, meaning it occurred without the property owner's permission.
• The property owner must not have taken legal action to stop the use during the statutory period.

Courts recognize prescriptive easements to acknowledge long-standing patterns of use that have gone unchallenged, often because the user has come to rely on that access or use over time.

Examples of Easement by Prescription:

• Shared Driveway Access: Imagine two neighboring homes, built decades ago, where the only practical access to the garage of Home A requires driving across a corner of the paved driveway that technically belongs entirely to Home B. For 30 years, the residents of Home A have consistently used this portion of Home B's driveway to reach their garage, and the owners of Home B have always been aware of this use but never objected or tried to block it. If the state's prescriptive period is, for example, 20 years, the owner of Home A might be able to claim an easement by prescription, legally securing their right to continue using that part of Home B's driveway for garage access, even if a new owner of Home B later tries to prevent it.

• Utility Line Maintenance: A rural homeowner has an underground water pipe that supplies their house, which was installed 40 years ago and crosses a section of their neighbor's undeveloped wooded land. The neighbor was aware of the pipe's existence and its route when they purchased their property 25 years ago, and they have never interfered with it or asked for its removal. If the homeowner needs to access the pipe for repairs, and the state's prescriptive period is 15 years, they could potentially claim an easement by prescription to legally access and maintain that water pipe on the neighbor's property, ensuring their continued water supply.