What Are Prescriptive Easements?


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When a person adversely possesses property or squats in a building, he or she may cause a prescriptive easement to occur. Knowing how this occurs and what ways to prevent it are both important for land and property owners, so they may implement the proper preventative measures and avoid a portion of land or a building to transfer ownership to someone else.

It is when someone takes over the property through squatting in the building or by slowly taking control of the land or building by acquiring with adverse possession. This could involve the use of a gate, fence or boundary marker across the borders of the property or through placing other items on the land such as a building. Squatters move in and remain until the place becomes theirs by legal rights. While usual easements provide benefit to a business, individuals or groups by legally adding conditions in the title, these specific easements may start out as a hostile takeover action.

What Is an Easement

Normal easements are not hostile or have an intentional act of taking the land or building away from the original owner. The location of such places as a parking lot or the back of a commercial building may lead to the need for an easement to drive through the land or create a sidewalk for pedestrians. The business would usually work with or petition through the courts for an easement or access to the property of privately owned land or buildings so that the public or company is able to use it for the business. There are often conditions attached, and the use becomes part of the title documents the owner possesses. Many easements pass down through generations or may need renewing.

Adverse Possession

The similarity in prescriptive easements to adverse possession leads to the need for understanding how a person may lose his or her property through potential hostile action. When a trespasser enters the domain of another, he or she may acquire land or a building by acting as if were his or her own. There are certain requirements, and the new owner may acquire the property through the legal regulations of the state where the property exists. Often this is up to seven or ten years. However, if the original owner does nothing to prevent the adverse possession, he or she will lose the property through legal circumstances.

Easements generally naturally occur through long-term patterns in how land or property use occurs. When a company needs to drive through the edge of a property line, it may do so over the course of years before the owner is aware of the action. Often, the company will communicate with the owner and attempt to make a deal for the use. However, if the courts determine the use exists already, the easement may occur through a court decision. Unfortunately, these laws are confusing, and they may not connect through the United States. So, adverse possession by way of a prescriptive easement may cost an owner part of his or her property.

The Prescriptive Easement Establishment

There are four elements to instances of prescriptive easements. These factors usually must exist for the easement to establish on the property. The use of the land or building is usually actual and open. The person is not intending to hide his or her activity. The use that occurs is without any consent or permission from the owner of the property. The use that happens must remain continuous for so many years depending on the state. Some require no less than five years, and other locations may demand seven or ten. For the prescriptive easement, the use of the property cannot exclude the use by the actual owner.

Even if the owner is not currently in residence, he or she must use the property in some manner for the prescriptive easement to take place. With all elements in place, the trespasser may acquire the property after the necessary years pass, and then he or she will become the legal owner of the parcel of land, a piece of the building or an entire asset. It may become possible to seek a title with his or her name attached by petitioning the courts.

Legal Support in Prescriptive Easements

When the owner discovers that the property is no longer his or hers, he or she may need to take the trespasser to court. Through hiring a lawyer, it is possible to seek a remedy, but the prescriptive easement may hold if all the elements exist.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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