If you need to use somebody else’s property for a particular purpose, an easement is a legal way to do this. This can be through an arrangement with the landowner, allowing you to use their land within certain restrictions.
The definition of an easement is relatively straightforward. Easements allow nonpossessory interest for someone to use another person’s land.
But easements don’t only happen with the agreement of the owner. They can be granted when someone has continuously used the land without permission for many years. This period is 20 years in Massachusetts, but it can vary in other states.
Perhaps someone has been using your land as a shortcut without your permission every day when they leave their home. If this has gone on long enough, they could acquire a prescriptive easement to legally entitle them to continue doing this.
Before buying a home it is essential to know what if any encumbrances are being passed along with the property.
Ask a qualified real estate attorney to check the title will be essential to know exactly what you’re getting.
Let’s take a look at everything you need to know about prescriptive easements.
What is a prescriptive easement?
If your neighbor has been using part of your property for many years, openly but without your consent, they could gain the legal right to keep using it. When they have been using your property against your wishes in an open and notorious way, they could have prescriptive easement rights after 20 years have passed.
If you have given them permission to use your land in this way, perhaps with a written contract, a prescriptive easement would not be granted.
The requirement for a prescriptive easement is the open and notorious use of the land. This is because the owner can take legal action to prevent their rights from being challenged.
If the person is trying to use the land without alerting the owner, this will not be considered open, and a prescriptive easement would not be allowed.
It is also required that the land use is obvious enough, so the land owner must have realized this was happening. And even if they didn’t notice, if it was something they should have known about, it will be considered notorious and meet the requirement.
How to prevent a prescriptive easement
If you have a neighbor that has been using your land for many years and you fear they will try to get a prescriptive easement, you can grant them use of the land. This will stop them from getting prescriptive easements and give you some control over the situation.
Another option to prevent this type of easement or right-of-way claim is a public notice of your intentions to prevent the acquisition of an easement. Your notice needs to be posted on the property for at least 6 days, and somewhere it cannot be missed.
A legal notice like this prevents easements from being acquired on your property going forwards.
However, a notice like this does not stop a claim of adverse possession. When someone is trying to claim possession of the land due to continuous usage, the landowner will need to get an injunction forcing the neighbor to remove the encroachment that is the basis of the claim.
Filing this claim will need to be done before they have been using the land for 20 years, openly and notoriously.
Final thoughts on easements
There are many types of easements when you could encounter when purchasing a home. A prescriptive easement is just one many. The most common type of easement is granted to utility companies or the city who need to access your property.
An easement like this should not be much of a concern. However, there are some kinds of easements that could restrict the use of your property.
Easements that restrict use could impact the market value of the property.
It is essential to do proper due diligence to understand exactly what rights come with a property.If you have a buyer’s agent they should be able to help with the research or put you in touch with someone who can.
Not understanding this could cause much disappointment with your purchase.
Bill Gassett is a nationally recognized real estate leader who has been helping people buy and sell MetroWest Massachusetts real estate for the past 35 years. Bill is the owner and founder of Maximum Real Estate Exposure. For the past decade, he has been one of the top RE/MAX REALTORS® in New England.
