What is easement by prescription in real estate?

What is an Easement by Prescription?

In real estate, an easement by prescription  refers to the right to use someone else's property, acquired through continuous and open use without the permission of the property owner, over a period of time as defined by state law. This concept is similar to adverse possession, but instead of gaining title to the land, the user gains a right of use.

Here's a more detailed breakdown:

  1. Continuous and Uninterrupted Use: The use of the property must be continuous and without significant interruption for a period specified by law, which varies from state to state but typically ranges from 5 to 20 years.
  2. Open and Notorious: The use of the property must be open and visible, so the property owner has the opportunity to notice the use and take action if desired. The use cannot be secret.
  3. Without Permission: The use must be without the permission of the property owner. If the property owner grants permission, then the use does not qualify as easement by prescription since it is not adverse or hostile.
  4. Adverse or Hostile: The user's possession of the property must be adverse or hostile to the owner's interests, meaning it occurs without the owner's approval. However, "hostile" does not necessarily imply ill will or conflict; it simply means that the use is without the owner's consent.

If these conditions are met, the user may be able to obtain a legal right to continue using the property in a specific manner, even against the wishes of the property owner. The precise requirements and the process for claiming an easement by prescription can vary significantly from one jurisdiction to another, and it often requires a legal proceeding to establish the easement officially.

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