What is a prescriptive easement?
A prescriptive easement is obtained by someone other than the property owner when they have used the property openly and notoriously for a specified period. The prescriptive easement allows them to continue to use the land they do not own in the manner they have been using it.
Okay, what does prescriptive easement mean in English?
Here is a real-world example. Say you own a piece of land and you build a fence that borders the entire property on all sides. Ten years later, your neighbor on one side says you built the fence five feet over your property line onto their property, and they want you to move it. You don’t have to move it. Why? You can apply for a prescriptive easement, which is a cloud on title.
So, how would I obtain an easement by prescription (aka prescriptive easement)?
Okay, now we’re talking. This concept could be a question on the real estate licensing exam. To obtain a prescriptive easement, there are a few requirements.
First, the use by the non-owner must be open and notorious. What does that mean? It means the person was using the land as if they already had an easement, in a way that was open and apparent to the property owner.
Second, the use of the servient land must be adverse. Meaning, the claimant must act as if they have the right to use the servient land.
The use must be uninterrupted and continuous versus sporadic and occasional.
Lastly, the person claiming the prescriptive easement must prove they have satisfied the elements for the statutory limitations period. All states have statutes specifying a time period during which a landowner must take action to eject a trespasser and regain possession of their land. After this time frame has passed, the right to bring such a claim is lost. This time frame varies from five to 20 years depending on the state.
That about covers it for your exam.
What other terms related to prescriptive easement should I know for my exam?
Click below for a review of easements for your real estate licensing exam:
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