Legal Definitions - positive prescription

Positive prescription is a legal principle where an individual or entity can acquire a new legal right, or even ownership of property, by openly, continuously, and without challenge using or possessing it for a specific period defined by law. Essentially, it allows someone to gain a right or title through long-term, visible, and unchallenged actions, rather than through a formal purchase, gift, or written agreement.

Here are some examples to illustrate this concept:

• Example 1: Acquiring Land Through Adverse Possession

  Imagine a homeowner, Mr. Henderson, who mistakenly builds a shed and extends his garden fence two feet onto his neighbor's undeveloped property. He maintains this small strip of land, planting flowers and using it as part of his yard, for 20 years. The neighbor, Ms. Davies, lives out of state and never visits the property, so she is unaware of the encroachment. After 20 years (assuming this meets the statutory period for adverse possession in that jurisdiction), Mr. Henderson might be able to claim legal ownership of that two-foot strip of land through positive prescription. His continuous, open, and unchallenged possession, treating the land as his own, allows him to acquire a new legal right to it, even though it was originally his neighbor's property.

• Example 2: Establishing a Prescriptive Easement (Right of Way)

  Consider a small community where residents have, for 25 years, regularly used a well-worn path across a private field owned by a local farmer, Mr. Green, to access a public park. The path is clearly visible, and Mr. Green has never put up "no trespassing" signs or attempted to block access. Through positive prescription, the community members might acquire a legal right-of-way (an easement) across Mr. Green's field. Their continuous, open, and unchallenged use of the path for the statutory period means they can legally continue to use it, even if Mr. Green later decides he wants to fence off his property. They have gained a legal right to use a portion of another's property for a specific purpose.