What Is The Difference Between A Prescriptive Easement And Adverse Possession?

Most non-lawyers have probably heard about adverse possession- the concept that you can become the owner of someone else’s property by treating it as your own.  But the term “prescriptive easement” is not as well known.  The two concepts have different requirements and implications for the rights of the parties. 

Adverse Possession concerns a claim of ownership of real property.  The claimant must establish that he or she possessed another’s property for 7 or 10 years (depending upon the circumstances) in a manner that is (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.  The minimum period for adverse possession is ordinarily 10 years, but can be reduced to 7 years where the claimant can prove that he or she paid the property taxes for that period on the property adversely possessed.  Because the payment of property taxes for someone else’s property is rare, people commonly say adverse possession requires 10 years of continuous possession, without making any reference to the shorter 7-year period.  Once you have met the requirements for adverse possession, you become the true owner of the possessed property, even if no litigation was ever filed, you did not even realize you met the requirements, and no order has ever been entered establishing your new rights.

Prescriptive Easements are not claims of ownership; they are claims of a continued right to use real property.  The requirements are similar to adverse possession.  The person claiming a prescriptive easement must prove (1) he or she used the land in an “open” and “notorious” manner, (2) the use was “continuous” or “uninterrupted,” (3) the use occurred over a “uniform route,” (4) the use was “adverse” to the landowner, and (5) the use occurred with the knowledge of such owner at a time when he was able in law to assert and enforce his or her rights.  Notice that in the case of a prescriptive easement, the requirements relate to “use” rather than possession, and that there is no requirement of exclusivity.  Rather than obtaining ownership of the property, the successful claimant of a prescriptive easement gets the right to continue using the property, and cannot be excluded or ejected by the owner.  In the majority of cases, even where one successfully establishes a prescriptive easement, the owner of the land continues to enjoy a concurrent right to use it in any manner not inconsistent with the easement established.  This is not the case with adverse possession, where the prior owner is a trespasser if they come on the property adversely possessed.

In both adverse possession and prescriptive easement situations, if there is litigation, the court has discretion to award the prevailing party its reasonable attorneys’ fees.

Whether you are claiming these rights or defending against such claims, having an experienced lawyer on your side can make a big difference.  The lawyers at Beresford Booth have a wealth of experience litigating and negotiating property disputes.  We would be happy to assist you with your boundary or easement dispute.

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