In the majority of cases, even where one successfully establishes a prescriptive easement, the owner of the land continues to enjoy a concurrent right to use it in any manner not inconsistent with the easement established. This is not the case with adverse possession, where the prior owner is a trespasser if they come on the property adversely possessed. Whether you are claiming these rights or defending against such claims, having an experienced lawyer on your side can make a big difference.
To establish the elements for a prescriptive easement , a plaintiff must show use of the disputed property for the statutory period five years , which use has been: 1 open and notorious; 2 continuous and uninterrupted; 3 hostile to the true owner; and 4 under claim of right.
To establish adverse possession of an estate , a plaintiff must show the same essential elements as above, plus an additional element which is often not met — payment of all taxes assessed against the disputed property during the five year period. The taxes element makes it more difficult to establish adverse possession than a prescriptive easement. This is appropriate, since a successful adverse possession plaintiff obtains ownership of the property an estate , while a successful prescriptive easement plaintiff obtains merely the right to use the property.
The court held that since the Hansens sought the practical equivalent of an estate, they needed to prove their payment of taxes for the Disptuted Land, which they could not.
In that event, the plaintiff will need to meet the taxes element in addition to the other elements. Access to timely real estate stock ideas and Top Ten recommendations. Learn More. Landowners need to regularly check their property, or someone could be using part of it.
If this goes on unchecked for years, the trespasser might earn a right to use the land. Real estate has long been the go-to investment for those looking to build long-term wealth for generations. Let us help you navigate this asset class by signing up for our comprehensive real estate investing guide. There are many types of easements , and a prescriptive easement is perhaps the most juicy, if you will, because it involves an easement gained through unauthorized, hostile means.
If the residents of CHOP in Seattle were to remain in place, unchallenged, for 10 years, for example, they might be able to claim a legal right to use the area because of a prescriptive easement. An easement in real estate is a legal right to use someone else's land.
Think utility companies having access to a strip of grass on the outskirts of your property. The utility companies don't need to let you know before they dig up part of your yard because they have an easement that allows use of your land for a specific purpose, typically to lay utility lines. Utility companies have a type of easement called a commercial easement. So, what is a prescriptive easement? Like all easements, a prescriptive easement is a right one person has to use another person's land.
But with a prescriptive easement, that right was gained by antagonistic means. The only way someone can acquire a prescriptive easement is by using someone's land for some purpose, such as growing a garden, with all the following conditions being met:. It's usually difficult to prove all those elements, and for good reason. It should be difficult for someone to simply lay claim to real property just because they want it.
A prescriptive easement has the potential to be a big problem for a property owner since it's gained by hostile means, unlike an easement by agreement, for example, which involves both parties, generally resulting in a fairer result for everyone. But because a prescriptive easement involves one person using land without permission, the owner could have an unpleasant situation on their hands, and one that could potentially lower their property value , maybe even significantly, from not having use of part of the land.
Most prescriptive easement cases happen in rural areas, usually when the landowner doesn't realize that someone else has been using their land. This often happens when a fence is put up on the neighbor's lot, for example. Oftentimes this is done by accident and not intentionally, but in some cases, the unauthorized land use was intentional.
California restaurant owners won a court case when they claimed the right to a prescriptive easement against a neighboring property. Since , the restaurant owners had been using the neighbor's then a bank's parking lot to receive truck deliveries. When the bank sold its property, the new neighbor challenged the restaurant's right to use the parking lot for deliveries Takeaway : When you're considering buying property -- commercial or residential -- find out whether there's an easement, prescriptive or otherwise, that would limit the use of that property.
If there were, you would need to be okay with it or find some workaround, because the easement stays with the land. Using the restaurant case from above, we can demonstrate how dominant and servient estates regarding easements work, which is a significant part of the easement process. Please note that we may record telephone calls for training and monitoring purposes. We use cookies on our website. Some of them are essential for the operation of the site, while others help us to improve this site and the user experience tracking cookies.
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