Prescriptive Easement Law and Legal Definition

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 may be difficult for an owner to discern, since they do not show up on title reports, and the exact location and/or use of the prescriptive easement is not always clear and occasionally moves by nature of the prescriptive use.

A prescriptive easement arises if someone uses a portion of an owner's property openly, notoriously, and without the owner's permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. State law should be consulted for the exact statutory requirement for an easement by prescription in each state. Easements can be further broken down into easements appurtenant and easements in gross. The characterization of an easement will affect the right 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 appurtenant over the servient estate transfers 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.