Elementsto establish an adverse use
The elements necessary to establish an adverse use are:
(1) open and notorious use;
(2) continuous and uninterrupted use;
(3) hostile to the true owner; and
(4) under a claim of right, for a period of five years.
However,what happens if you purchase property where the prior owner has only engaged in adverse use for less than the prescriptive period? As a corollary, does a prescriptive easement transfer with the sale of property? We discuss each of these situations below.
When a Prescriptive Easement Has Not Yet Ripened
In the event a prescriptive easement has not yet ripened, a predecessor’s use may betacked on to the current owner’s use, as long as the adverse use is consistent throughout the required period. However, this only applies if the predecessor’s use was hostile. Indeed, one claiming a prescriptive easement may not tack to the periodof the person’s prescriptive use that of the person’s immediate predecessor in interest, whose access to the easement was with permission and without claim of right.
When a Prescriptive Easement Has Ripened
In the event a prescriptive easement has ripened, it generally transfers with the sale of the property, even though it will not appear on title. First, the transfer of propertyusually includes all of the rights, privileges, powers and immunities incident to the ownership of the property. In addition, once a prescriptive easement ripens, it will continue in perpetuity, unless it is otherwise terminated. Nonetheless, a prescriptiveeasement can be terminated by the servient tenement by adverse possession. Accordingly, although a prescriptive easement may transfer with the sale of the property, certain circumstances could cause a prescriptive easement to thereafter terminate. Indeed, even though a prescriptive easement ripens once all the elementsare met, the rights are not perfected until there is a Court order or judgment to declare the existence of a prescriptive easement.