Young Man on Bicycle: “I have an easement to go across your property.”
Old Man with Shotgun: “Oh, yeah, then show it to me.”
Young Man: “It’s a prescriptive easement. “
Old Man’s Shotgun: “Click-click.”
Let’s talk about easements.
An express easement is a written instrument that gives someone the right to do something on someone else’s property. An express easement includes the right to do those things reasonably necessary to use the easement for the permitted purposes but does not allow uses that go beyond those permitted purposes. For example, an express easement to play volleyball in a corner of a field would include the right to put up a net but not the right to set up a booth to sell lemonade between games.
The owner of the property cannot unreasonably interfere with the grantee’s use of the easement (such as putting a barbeque pit just outside the service line), but the owner can use the easement area for purposes that do not interfere with the grantee’s use of the easement (like re-seeding the grass).
A prescriptive easement arises from use of another person’s property for a period of ten years or longer where that use has been open, notorious, adverse to the interests of the owner and not permissive. If you drive across your neighbor’s property once in a while to get to your house over a ten year period, that, in itself, may not be enough. You have to act in a way that lets your neighbor know that you are using a portion of his property as your driveway whether he likes it or not. For example, you could drive up and down the driveway in your bright, blue Hummer, honking the horn, and when your neighbor tells you to get off his property, you could yell out the window, “This is my driveway!”
A prescriptive easement only allows you to continue to use the area that you have actually used for the purposes for which you have used it throughout the prescriptive period. For example, a prescriptive easement to use a strip of land to get to your house would not allow you to plant shrubs or put up a fence along the edge of that strip.
This article is intended to give a general overview of express and prescriptive easements. It is not intended as legal advice. For legal advice you should consult your attorney.
