Legal Definitions - prescription

In legal terms, prescription refers to a principle where certain rights or titles are either established or lost simply through the passage of time and specific actions or inactions. It acknowledges long-standing situations, even if they weren't initially formalized, and gives them legal effect.

The most common application of prescription in property law is the acquisition of a prescriptive easement. An easement is a legal right to use another person's land for a specific purpose without owning that land. A prescriptive easement is gained when someone openly, continuously, and without the owner's permission uses a portion of another's property for a period defined by law (which varies by jurisdiction, often 10-20 years).

To establish a prescriptive easement, the use must generally be:

• Open and Notorious: The use must be visible and obvious enough that a diligent landowner would be aware of it. It cannot be hidden or secretive.
• Adverse: The use must be without the landowner's permission. If the owner consents to the use, it is considered permissive, not adverse, and cannot lead to a prescriptive easement.
• Continuous and Uninterrupted: The use must occur regularly over the statutory period. While it doesn't necessarily mean constant daily use, it must be consistent with the nature of the right being claimed.

Prescription can also refer to the extinction of a right or title if it is not exercised or claimed over a long period, sometimes called "extinctive prescription."

Here are some examples illustrating the concept of prescription:

• Example 1 (Acquisition of a Prescriptive Easement for Access): For 18 years, residents of a small lakeside community have consistently used a well-worn dirt path across a corner of a privately owned, undeveloped forest lot to reach a popular fishing spot on the lake. The owner of the forest lot lives out of state and has visited the property only a few times, but the path is clearly visible, and local residents openly use it. The owner has never posted "No Trespassing" signs or otherwise objected.

  Explanation: This scenario demonstrates the potential acquisition of a prescriptive easement. The residents' use of the path was open and notorious (visible path, open use), continuous (regular use over 18 years, likely exceeding the statutory period in many places), and adverse (without the owner's express permission). If these conditions are met, the community members might gain a legal right to continue using that path to access the lake.

• Example 2 (Acquisition of a Prescriptive Easement for Utility Lines): A homeowner installed an underground irrigation pipe 12 years ago that inadvertently crosses a small, unused strip of their neighbor's property to connect to a water source. The neighbor was aware of the installation at the time and saw the trenching, but never raised an objection or gave formal permission. The pipe has been in continuous use since then.

  Explanation: This illustrates how a prescriptive easement could be established for a utility line. The installation and use of the pipe were open and notorious (visible trenching, ongoing water flow), continuous (12 years of uninterrupted use, potentially meeting the statutory period), and adverse (no explicit permission was granted, and the neighbor's inaction implies a lack of objection rather than permission). The homeowner might acquire a legal right to maintain and use that portion of the irrigation pipe on the neighbor's land.

• Example 3 (Extinction of a Right through Prescription): Many years ago, a property deed included a specific "right of re-entry" allowing a previous owner or their heirs to reclaim the land if it was ever used for commercial purposes. However, the land has been used commercially for the past 40 years, and the original owner's heirs have never attempted to exercise this right or challenge the commercial use.

  Explanation: This demonstrates extinctive prescription. Because the heirs failed to exercise their "right of re-entry" for an extended period (40 years) despite the condition being met, that right might be legally extinguished. The passage of time and their inaction could prevent them from enforcing that old condition in the future.