The Key to Understanding Prescriptive Easement
A prescriptive easement exists when someone uses a property for a given period of time without the consent or permission of the owner of that property. A prescriptive easement can be utilized in any property that is private, not that of any government organization or authority. The prescriptive easement becomes active after a certain period of time has passed with the use of the property continuing without the consent of the owner. After this period of time passes, a prescriptive easement is given over the property. If anytime prior to this time period passing, the owner grants permission for the easement, then the prescriptive easement is abolished.
In each state the property laws vary, so in this case, the time period required of the prescriptive use of a property will vary as well. Some usual time periods of prescriptive use would be terms of ten or twenty years. A prescriptive easement must be clear and known to both parties, especially the owner of the property where the easement occurs. The use must also be uninterrupted, not capable of being discontinued, or prevented by the owner of that property. Once the owner interrupts the use of the property whether by clear disapproval, or by using barricades such as fencing, the easement can not exist.
An example of a prescriptive easement would be property owner using a part of his neighbor's property, to travel across as a means of accessing perhaps a side road that isn't in front of that owner's house. The neighbor notices it but never stops it, so it becomes a walkway for them to alternately exit the property. The neighbor (land owner) does not tell the "trespasser" at this time to stop doing so, or blocks off his property with a fence or similar structure. If this goes on for about ten years (pending the property laws), without the neighbor stopping the travel across the property, then that person will be granted a prescriptive easement over his neighbor's property.
At any point during this use, the owner of the property has the full right to prohibit this use when he sees it, and notify the "trespasser" of his prohibition, banning them from traveling across the property any further. It is crucial that the property owner be completely and utterly aware of the use of his property for this matter, because by waiving his rights and not interrupting or banning the use, the prescriptive easement will be granted. If the person using the land, sneaks through it at night perhaps, or when the neighbor cannot notably witness the matter, then it does not constitute for a prescriptive easement in due time.
A prescriptive easement is continuous and will last through the possession of it, should its holder choose to sell the property. The easement would shift to the new owner, so that they can exercise its entailments and use the land as the previous owner. This is a form of an appurtenant easement, where the holder would be the dominant tenement and the transfer regulations apply the same way.
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