A prescriptive easement is an easement upon another's real property acquired by continued use without permission of the owner for a legally defined period. State law, which varies by state, defines the time period required to acquire a prescriptive easement. Prescriptive easements are harder to be noticed of, since they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
A prescriptive easement arises if someone uses part of your property with your permission. It can also occur when you use part of your neighbor's property without approval. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Local laws should be consulted for the exact requirements in your area. Easements can be further broken down into easements appurtenant and easements in gross. The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.
Easements in gross are unrelated to the easement holder's possession of a dominant estate and do not ordinarily transfer with title to an adjacent property. As a general rule, easements in gross are not transferrable unless transfer is specifically authorized in the document creating the easement. However, if the easement has commercial value, unless there is an express intent to limit transferability, the commercial easement in gross has the same attributes of transferability as other interests in property. Laws regarding transferability of easements vary by state, so local laws should be consulted.
