During a ten year stint as a right of way agent for a telecom, a frequent refrain heard from the outside plant engineers was something like “Let’s put the pole line on this property, I’m sure that we have prescriptive rights.” Or even better, “let’s build the pole line here, nobody owns this property.” Of course they were wrong on both counts. An article about the latter issue will be in another article.
What are the requirements for obtaining a prescriptive easement?
We must have an explanation of where Prescriptive Rights come from:
Adverse possession is the acquisition of title to real property by continuous possession for the prescribed period of time. Interestingly, a person’s right to acquire real property by adverse possession begins with the wrongful occupation of another person’s property. In addition to the elements listed below for prescriptive rights the claimant must pay the property taxes.
The underlying philosophy of the doctrine of adverse possession is that land use has historically been favored over disuse, and therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner. Hence our laws of real property have sanctioned certain types of otherwise unlawful taking of land belonging to someone else, while, at the same time, with respect to other types of property have generally taken a contrary course.
Before continuing, it must be pointed out that a prescriptive easement cannot be taken from the following entities:
♣ Incompetent owners (under age or mentally incapacitated)
♣ Anyone who is physically unable to visit the property regularly
♣ Any governmental agency
Probably the most misunderstood of all the kinds of easements. Prescription is the shakiest type of easement because most legal departments and independent attorneys find that it is too difficult to defend. The elements involved to claim a prescriptive easement are:
- Open and notorious
- Continuous and uninterrupted for the statutory period of time
- Hostile to the true owner
- Under a claim of right
- An “Action to Quiet Title” court action must be filed to “perfect” the prescriptive right
- Let’s boil each item down one at a time.
Open and notorious: visible to the real property owner with no special knowledge needed to recognize the presence of a claimant. i.e., a roadway, driveway, utility pole, fence, etc.
Continuous and uninterrupted use for the statutory time: the claimant must occupy the land for the statutory time; see below, with no interruptions of the time required.
Hostile to the true owner: if the fee owner of the land attempts to eject the claimant and fails then that is truly hostile.
Under a claim of right: the claimant is attempting to exercise a right in the form of an easement.
Action to Quiet Title: this action occurs when the claimant has fulfilled the previous four items and the court finds in favor of the claimant. The court essentially grants the prescriptive easement.
If it was always as cut and dried as we have seen above, then there would be a lot more prescriptive easements. Let’s use a power company as an example. The XYZ power company has a pole on your vacant land. Since the land is vacant there is no power being provided to your property. The pole has been on your land for the statutory time frame. It is obviously visible; the company is claiming an easement right. The company decides to file an action to quiet title. You have made inquiries to the company about removing the pole from your property, but no demands, no letters. You are subpoenaed for the trial. You testify that you really didn’t have an issue with the pole, in fact, whenever you working on the property and some power workers were doing work there you always offered them a soft drink during warm time or hot coffee in the winter. You were essentially giving the power company verbal permission to stay there.
The above scenario brings out two issues:
- Since you have given verbal permission, a license, to the company there is no hostility. See the third bullet above. Remember from real property law, a license is revocable!
- If you had given the company a license then the statutory time does not begin until now because you are now revoking the license.
Most utilities and telcos very rarely go to court. Most of the time they bluff. The property owners just figure that it is the utility or Telco and they must know what they are talking about. Now that is not an indictment against those companies nor are we going to get into a discussion on ethics.
The majority of cases filed for prescriptive easements have to do with access via a roadway or driveway. A recent case in Montana was over a road that crossed a section of land; we’ll call it parcel A. There had never been an easement granted. The adjoining parcel, which is owned by a farmer, used the road as its only access. This roadway has been in use for over sixty-years. A new owner now has possession of parcel A and he put a gate across the road, blocking the farmer. The farmer filed an action to quiet title and won in the court.
CAVEAT: Please consult an attorney for legal advice. Laws in the United States differ from one jurisdiction to another. Any law stated herein is for educational purposes only and may not apply to your particular circumstance.
Prescriptive Easements, Time Of Occupancy Required
District Of Columbia 5
Missouri 10 (Not available for utilities)
New Hampshire 20
New Jersey 20
New Mexico 10
New York 10 (Not available for utilities)
North Carolina 20
North Dakota 10
Rhode Island 10
South Carolina 20
South Dakota 20
West Virginia 10