Easement by Prescription: What Is It & How Does It Affect You?

By Bill Lyons | Published on October 6, 2023

When you apply for a home loan, lenders do a title search to uncover issues with the title, including liens and easements. If you’re a first-time buyer, knowing what an easement is can help you determine whether you want to move forward with the sale.

An easement on a property refers to the legal right given to non-owners who use a portion of the land for a designated purpose. Easements can be complicated to understand, especially if they’re an easement by prescription, which grants trespassers rights to use your property.

So, what is a prescriptive easement? Easement by prescription is a concept rooted in property law and has significant implications for property owners and those who use that property without owning it. Keep reading to learn more about this type of easement and how it affects property rights.

What Is Easement by Prescription?

Easement by prescription, also known as prescriptive easement, is a legal concept that allows an individual to use a portion of another person’s property based on long-term, consistent, and open use of that property without the owner’s explicit permission. For a prescriptive easement to occur, several conditions must be met:

• Open and notorious use: The use of the property must be apparent and visible; it can’t be hidden or secretive.
• Adverse and without permission: The person using the land is doing it without the explicit consent or permission of the property owner.
• Continuous use: The individual must use the land consistently and without interruption for a specific period.
• Hostile use: The use of the property without the permission of the owner or contradictory to their property rights.

It’s crucial for homeowners to understand easement of prescription and how it works because it can affect their ability to control access to their property.

Easement by prescription example

The prescriptive easement definition can be difficult to understand. Ultimately, this situation occurs when someone uses a portion of another’s property without their consent in a way that’s open, notorious, and continuous for a defined period of time. If the use of the property continues uninterrupted for the prescribed duration, the user may acquire the legal right to continue using it even though they don’t own the property.

To help you understand this concept, let’s take a look at an easement by prescription example:

Let’s say that residents of a certain street used a dirt path as a shortcut to reach the nearby bus stop. The property belongs to an older woman who doesn’t mind her neighbors use her path. As years passed, the path started showing signs of regular use, such as flattened grass.

When the older woman passed away, her property was inherited by her grandson. Upon taking ownership, her grandson decided to build a fence around the entire property, blocking access to the shortcut, which upset the neighbors.

Who has rights in this situation? Ultimately, the long-standing use of the path provides the neighbors with potential rights under the concept of prescriptive easement since it was utilized openly, continuously, and without permission for years,

In this example, the consistent and open use of the path through the property over many years allows the neighbors to claim easement by prescription. Now, the grandson can acknowledge the easement and let the neighbors continue to use the path or go through a lengthy legal process that may be costly for both parties.

What’s the Difference Between Prescriptive Easement and Adverse Possession?

Adverse possession and prescriptive easement are concepts that deal with property law and the rights of owners vs. non-owners.

A prescriptive easement grants an individual the right to use a portion of the owner’s property in a specific way. With adverse possession, the individual can gain actual ownership of the property after using it openly and continuously for a legally prescribed period. Then, the original owner loses their rights to that property.

Easement by prescription and adverse possession requires open and continuous use. However, only adverse possession requires the possessor to pay property taxes or meet other specific conditions to claim ownership.

In short, prescriptive easements don’t give the individual ownership of the property; they only allow them to use it in the same way they always have. While it deals primarily with the right to use, adverse possession deals with the right to own.

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Benefits and Drawbacks of Prescriptive Easements

Prescriptive easements have advantages and disadvantages for homeowners. Like the neighbors in our example, those who benefit from them only see the advantages. However, home buyers should consider whether a home with a prescriptive easement is something they want to pursue. Ultimately, do you want others to have the right to use your property?

Let’s take a look at the benefits and drawbacks of prescriptive easements for homeowners.

Benefits of easement by prescription

The existence of an easement by prescription on the property can offer advantages in some cases, such as:

• Limits disputes: Easements can limit conflicts among neighbors by setting clear guidelines for land use. When the homeowner recognizes an easement by prescription, it sets a clear boundary for the usage of the property. The specifics of the easement are established to prevent further encroachment or expansive use of the property.
• May increase property values: An established easement may increase property value. For instance, a walking path used by the community can make adjacent properties more attractive to potential buyers.
• Community goodwill: Allowing an easement by prescription can create and maintain goodwill within the community. For homeowners who value good neighborly relations, allowing property usage can foster positive communities.

Prescriptive easements may also make the property unattractive to certain buyers, so you may be able to use them to negotiate a price reduction from the seller before making a purchase.

Drawbacks of easement by prescription

Of course, many homeowners don’t want an easement by prescription because it means someone else has access to the property. The drawbacks of prescriptive easements include the following:

• Limitations on property use: If there’s an easement, it might limit how homeowners can use or develop the property.
• Decreased property values: While prescriptive easements can increase property values, they can also decrease them. Some easements will deter potential buyers, especially if it implies foot traffic or other disturbances that affect the property’s desirability.
• Legal and financial implications: Defending against a prescriptive easement can lead to legal disputes that can be costly and time-consuming for homeowners.

How Does Prescriptive Easement Affect You?

The simple fact is that many potential homeowners don’t want properties with easements because it limits their use of the property they own. When buying a new home, consider the legal factors because they can significantly affect the property and your overall satisfaction with the purchase.

If you want to avoid an easement, you’ll need to do your research. If there’s a prescriptive easement associated with a property, it will influence your rights concerning that property.

Closing costs for buyers include a title search, which reveals any legally recognized easements. Still, buyers should also look for signs of informal use by neighbors or others that could lead to a future easement claim after the deal is finalized.

You can also use an existing prescriptive easement as a negotiation point. Depending on the implications of the easement, buyers can renegotiate the purchase price or ask the seller to resolve easement issues before finalizing the sale.

Easements can increase or decrease property values. For instance, if the easement provides essential access, it might add value to the entire neighborhood. However, allowing neighbors to walk through the property can detract from its desirability, affecting its market value.

In addition, some lenders may be hesitant to approve a loan for a property with an easement by prescription. Some loan programs address encroachment specifically. For example, VA loan rules for selling indicate that properties must have clear boundaries, so encroachment may make selling or purchasing a property more challenging.

Ways to Prevent Prescriptive Easement

Protecting your property from the implications of a prescriptive easement is essential if you don’t want to share usage rights with your neighbors or anyone else. While the laws about prescriptive easements vary based on location, there are several general strategies you can follow to prevent them, such as:

• Looking for signs before and after you buy: Even if there’s no official easement by prescription on file when purchasing the home, that doesn’t mean there can’t be future claims. Inspect the property before you buy it for signs that it’s being used by anyone other than the homeowner. Then, regularly walk your property and look for signs of encroachments or unauthorized use.
• Post signs: If you don’t want trespassers to be able to claim rights to your land, you can use “No Trespassing” signs that act as a deterrent and make it clear you don’t permit access to them.
• Grant permission: You don’t necessarily have to block someone from using part of your property. By granting them access in writing, their use of the property becomes permissive rather than adverse, which is a requirement of prescriptive easement. This can prevent future claims.
• Physical barriers: If you want to prevent a prescriptive easement later on, installing gates and fences can physically block or limit access to your property, sending a clear message about property boundaries.
• Communicate with neighbors: If you notice neighbors encroaching on your property, consider having a friendly conversation with them to resolve the issue before it escalates.
• Legal action: If someone uses your property without your permission and refuses to stop after you’ve spoken to them, you can consult a real estate attorney. The faster you take legal action, the less opportunity the person will have to claim an easement by prescription.

Final Thoughts

Before purchasing a house, it’s essential to ensure there aren’t issues that can affect your enjoyment of the property. Ensuring there are no prescriptive easements of the property or understanding the implications of one is paramount before signing a purchase agreement.

When you apply for a mortgage with Griffin Funding, we can identify prescriptive easements during the mortgage process to ensure you understand the true implications of your investment. Whether you’re applying for your first VA loan or a conventional mortgage, our dedicated experts will walk you through every step of the process. Apply for a mortgage with Griffin Funding today.

Bill Lyons

Bill Lyons is the Founder, CEO & President of Griffin Funding. Founded in 2013, Griffin Funding is a national boutique mortgage lender focusing on delivering 5-star service to its clients. Mr. Lyons has 22 years of experience in the mortgage business. Lyons is seen as an industry leader and expert in real estate finance. Lyons has been featured in Forbes, Inc., Wall Street Journal, HousingWire, and more. As a member of the Mortgage Bankers Association, Lyons is able to keep up with important changes in the industry to deliver the most value to Griffin's clients. Under Lyons' leadership, Griffin Funding has made the Inc. 5000 fastest-growing companies list five times in its 10 years in business.