Easement by Prescription

Easements by prescription, also called prescriptive easements, are easements that arise even though they are not expressly created or recorded. It is similar to adverse possession, however prescriptive easements do not convey the title to the property, only the right to utilize the property for a particular function and often require less strict requirements of proof.

Easements by prescription generally hold the same legal weight as written easements. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open, actual, and continuous. Unlike adverse possession, prescriptive easements typically do not require exclusivity and may or may not be hostile. Some jurisdictions also require that the use be notorious. If the use is hostile, the period of continious use before the prescriptive easement becomes binding is generally between 5 and 30 years depending upon local laws. In some jurisdictions, if the use is not hostile but given actual or implied consent by the property owner, the prescriptive easement may become binding immediately.

Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.

Right of way for access is among most common easement by prescription.