Adverse Possession vs. Prescriptive Easement and Defenses
Adverse possession of real property owned by another person generally requires open, continuous, and exclusive possession for more than ten years. The public policy is that, if someone other than the owner has exclusive use of real property for more than ten years, the owner of that real property should not be entitled to retain ownership and they forfeit their right to the land. For example, if a fence is built three feet over onto the property of a neighbor for more than ten years, that neighbor has forfeited the right to continue to own that three feet of land.
How is a prescriptive easement different from adverse possession? The only difference is that exclusivity is not required. In other words, a person claiming a prescriptive easement can share the use of the property with the owner. For example, if there is a pathway over the owner’s property to the lake, and a person uses that pathway openly and continuously for more than ten years, that person has a prescriptive easement to use that pathway. The owner still owns the land and can also use the pathway.
The primary defense to a claim of adverse possession or prescriptive easement is consent. A letter, email, telephone call, or a conversation at Starbucks whereby the owner grants permission to use the owner’s property. Consent defeats a claim for either adverse possession or prescriptive easement. This permission can occur at any time prior to the expiration of the ten-year period. Other defenses include infrequent use of the property, or the owner’s lack of knowledge of the use of the property.
Contact us to write a letter to prevent adverse possession or a prescriptive easement from tolling on your property.
If you would like assistance regarding commercial or residential transactions, potential litigation, HOA issues, estate planning or other legal matters, please call our office at 602.957.9810 and arrange for an initial consultation with one of our real estate attorneys.