Prescriptive Easements

Easements grant legal authority for one person (the dominant property owner) to use the property of another person (servient property owner) without possessing legal property ownership. We have discussed this previously in a blog post describing what you need to know about easements.

While people are typically granted easements voluntarily, there are cases where someone can obtain the right to an easement over time, even if the owner of the servient property is against it. Similar to the concept of adverse possession, the term used to describe these circumstances is prescriptive easement.

5 Ways to Show Grounds for Prescriptive Easements

To establish a prescriptive easement, the person claiming the easement must use another person’s land for a period of 10 years and show that:

1. they 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 they were able in law to assert and enforce their rights.” Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 83-85, 123 P.2d 771 (1942)

In these cases, the claimant bears the burden of proving the elements of a prescriptive easement. Id. at 84.

As a matter of what this means is that the court will have certain presumptions, with regard to a potential easement claim, based on the particular facts presented.

An Example of Prescriptive Easement

Suppose you’ve been parking your car next to your house for many years, even though it’s technically on your neighbor’s land. You and your guests regularly use that spot, and your neighbor hasn’t complained, or maybe they mentioned it, but you didn’t pay much attention. After a decade, your neighbor suddenly puts up a chain to stop you from parking there. You would have gained the right to sue for a prescriptive easement to continue using his property as you have been doing.

Runs with Land

Imagine you bought the property mentioned above only five years ago, and the person who owned it before you had been parking on your neighbor’s land for the five years leading up to your purchase. The important thing to know is that the ten-year countdown for gaining a prescriptive easement does not reset when you buy the property. The prescriptive portion extends or “runs with the land.”  You will have achieved the ten-year prescriptive time requirement.

Protect Your Rights

As a property owner, it is important to determine and protect your rights. There is an old saying; “No good deed goes unpunished.” There are cases where someone was allowing others to cross his land to fish in a lake. People started abusing this privilege, having parties, leaving trash, and making unwelcome noise. When he tried to fence off his property, he ran into claims of prescriptive easement.

Beware the unwary. There are simple ways to be a good neighbor, allowing certain uses over your land while legally protecting your ability to exclude others, should the need ever arise. Talk to an experienced land use attorney from The Whipple Law Group, today, to find how best to accomplish this.

Let The Whipple Law Group Assist You

Remember, each of the five prescriptive easements elements are subject to legal interpretation and argument. Call a land use attorney to determine how to assert and protect your legal interests.