What is a Prescriptive Easement and How Does it Differ From Adverse Possession?

A prescriptive easement can be created by: (1) continuously using the property for 5 years; (2) in a manner that is open, notorious, and clearly visible to the owner of the land; and (3) hostile and adverse to the owner.

In other words, someone who has no ownership interest in your property (a trespasser), can obtain an easement by prescription, aka without your express permission, if they openly use your land without your permission for a period of 5 years without interruption.  So for example, if your neighbor creates a path across your property to the woods where he hunts, and he uses the path for 5 years without any objection by you, your neighbor can obtain a prescriptive easement to use that path.  This is obviously a somewhat simplified explanation but this is the general principal.

To be clear, your neighbor, even with a prescriptive easement does not own the path – he does not own your property.  But he does have the right to use your land to get to the woods.

You might be thinking this sounds a lot like adverse possession, and it is similar.  Indeed, there are similar requirements.  But, adverse possession establishes fee title to the real property occupied, whereas a prescription only creates an easement in favor of use.  So an adverse possessor receives the benefits of a fee title owner, including the right to exclusive possession of the property.  By contrast, a prescriptive easement only gives the easement holder a limited right to use the property of another and only in the manner used during the prescriptive 5 year period.

Regardless, as a property owner, allowing trespassers to obtain interests in your property by adverse possession or prescription is not a desirable outcome.  Be vigilant and aware of what is occurring on your property, and you should not have any problems.

If you have any questions regarding your potential prescriptive easement matter, please feel free to contact Schorr Law, APC at (310) 954-1877, or info@schorr-law.com. You can also send us a message by using our contact form.