Most people who regularly deal with real estate know that an easement is the right to use someone else’s property. A common type of easement is a right of way, where one property owner accesses his property by driving through the property of another. But can you acquire a legal right to access another person’s property merely by using it for a period of time? The answer is yes, and it’s called a prescriptive easement. A prescriptive easement is similar to adverse possession but instead of conveying ownership of property, a prescriptive easement conveys the legal right to use property. To establish a prescriptive easement, the property owner seeking use of another’s land must show the following:
- The use is adverse, hostile, or under a claim of right;
- The use is open and notorious;
- The adverse use must be continuous and uninterrupted for twenty years; and,
- There must be substantial identity of the easement claimed.
West v. Slick, 313 N.C. 33 (1985). To put the same four criteria above in layman’s terms, the property owner who wants to use his neighbor’s property must show the following:
- The use is without the neighbor’s permission;
- The use is obvious to the neighbor;
- The use is exercised regularly by the property owner and has not been blocked by the neighbor for twenty years; and,
- The use must be generally identifiable, meaning the placement and extent of the use must be somewhat certain.
If a property owner wants to establish he has a prescriptive easement over his neighbor’s property he has to prove these four things – in court – by a preponderance of the evidence. The burden is on the person who has been using the neighbor’s property, not on the neighbor whose property is being used.
With that general description of a prescriptive easement in mind, it may be helpful to know how to avoid them if your property is possibly subject to this type of easement. Assuming that most people want to be good neighbors but also want to avoid neighbors acquiring permanent use of their land, you could explicitly tell them, in writing, that their continued use of your land is with your permission. This would defeat any future claim of a prescriptive easement by eliminating the first criterion above. That way, if circumstances change, you would retain the authority to modify your neighbor’s use of your property. While it may be an uncomfortable conversation to have and letter to write, it may save you some aggravation in the long run.