What is a Prescriptive Easement?

One meaning of the word prescriptive is “a right having become legally accepted or established by usage over a period of time.” An easement in legal terms is a “right to cross or otherwise use a piece of property for a specified purpose.” Samples of prescriptive easements might include a sunny garden space your neighbor tends as a rose garden, or a gravel path on your property that provides neighborhood access to a popular swimming hole.

The 5-Year Prescriptive Easement Timeline

If you own property where people besides you access your land for more than 5 years to grow flowers or go for a dip, you are permitting open and notorious use. Your neighbors are not hiding their continuous presence and activities from you. As the landowner, you have now allowed prescriptive easement.

A California Case Involving a Prescriptive Easement

In a complicated 1982 California case – Twin Peaks Land Co v. Briggs, a multi-parcel property that was originally deeded in 1892 (!) is a good example of how a court decides when this type of land dispute occurs.

Over many years and many owners, an easement (a road) was used by a small gun club to access an area of property for hunting, picnics and other activities. The 10-member club incorporated in 1959, and eventually purchased equipment to maintain the road annually. As the years passed, the corporation defended the road as a “right of way” and continued their historic access to their hunting camp. Use of the road was open and notorious, and used for the same purpose for decades (it was not converted to a children’s camp or auto junkyard). The corporation prevailed in their case for a legal prescriptive easement.

The Court of Appeal held that the hunting club would be able to use the roadway and to continue to access their hunting camp.  The hunting club would not be able to use the easement for any other activities like pasturing cattle and horses, entertaining guests or having picnics.

When Do Prescriptive Easements Get Messy?

• When people attempt a prescriptive easement of government property – this is illegal.
• If someone is injured or property is damaged in the contested area, a landowner could face liability along with the “trespassing” party.
• During property sales if new owners are unaware of prescriptive easements. Often prescriptive easements are more like handshake agreements, as they are not necessarily documented on deeds.

Know Your Rights. Protect Yourself.