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What is a prescriptive easement?

Posted by Attorney Stephen Hance | Apr 26, 2013 | 0 Comments

As everyone knows, an easement is a right of one property owner to use land owned by another person. Usually easements are the result of an agreement between the property owners, or their predecessors. A prescriptive easement (or “easement by prescription”) on the other hand is an easement obtained by one owner without the voluntary assent of the other owner.

A prescriptive easement is based on prior continuous use, and grants a right to continue using the property based on such prior use. In other words, in certain circumstances, if you use your neighbor's property to access your own property for a long enough period of time, you might acquire easement interest in their property.

The law of prescriptive easements derives from the concept of adverse possession in which one party may actually acquire full ownership of land in similar circumstances. As such, Minnesota courts use the legal elements of adverse possession subject to the inherent differences between such claims. The elements necessary to prove adverse possession are well established and require a showing that the property has been used in an actual, open, continuous, exclusive and hostile manner for 15 years. See Ehle v. Prosser, 197 N.W.2d 458, 462 (Minn. 1972).

The inherent differences revolve around the requirements of “continuous” use and exclusivity. Obviously, when one merely travels over a property for access, they are not using it “continuously” or even “exclusively.” Courts view the concept of continuous use less strictly in the prescriptive easement context. As such, one might acquire prescriptive easement rights even if he merely crosses the property twice a day for 15 years.

The requirement of exclusivity is also less strictly defined in the context of prescriptive easements. In adverse possession, the person must take possession of land as though it was his own, and to the exclusion of others. With prescriptive easements the person claiming the easement need not exclude use by the owner of the land or by the public. Romans v. Nadler, 14 N.W.2d 482 at 487. What is required is that the person's right to use the land must not depend on a similar right in others; it must be exclusive against the community at large. Merrick v. Schleuder, 228 N.W. 755 (Minn. 1930).

Prescriptive easement claims often involve neighbors and they are often contentious. Given the number of elements discussed above and the likelihood of incivility, it is always wise to consult with an attorney before taking unilateral action.

About the Author

Attorney Stephen Hance

Steve represents and advises clients that are dealing with business and real estate disputes. Steve is an investor and business owner, and his approach is unique from other attorneys.

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