Chipman Mazzucco Emerson LLC

How is a prescriptive easement created and corroborated?

If you are looking to purchase a piece of property, it can be disconcerting to realize that another party uses a portion of that property, usually an adjoining land owner, without the permission of the seller. You may ask the other party to cease and desist using the property, but under the right circumstances, the other party does not have to do so.

That's right. Another party may have the right to use a portion of the property you intend to purchase without your consent and without a valid easement in place. It's a legal theory, the origins of which trace back to well before the year 1275 under common law. In fact, such prescriptive easements once used the standard of the Norman conquest of 1066 as a guideline for how far back the use of the property could go in order to grant such an easement.

The law now includes more specifics

Fortunately, the law no longer relies on whether anyone can remember when the easement began as the yardstick for whether a prescriptive easement exists. Instead, the law requires the presence of the following elements for one to exist:

  • The use of the property must occur without the owner's consent, adverse to the owner's property interests and rights, and be tantamount to trespassing.
  • The use of the property must occur out in the open in a way that any reasonable person would recognize it. This means that the use should provide the owner with either constructive or actual knowledge.
  • The use of the property must occur regularly for the period required by law without any interruption from the property owner. Interruption from someone else does not negate this requirement.

The required period varies by state but does not start over with each other party who uses the property. For example, one owner drives his or her vehicle over your property for a while and then sells the property. The second property owner continues to drive his or her vehicle over your property and so on. The statutory period does not restart when a new owner takes possession of the property and uses yours. The key is that the usage remains uninterrupted.

What does this mean for you?

If the appropriate amount of time passes, your neighbor may apply for a prescriptive easement and receive it. You still own the property, but the easement remains, and it could diminish the value of your property. Title insurance may provide you some monetary relief under the circumstances, but only if your policy covers claims of easements and unrecorded easements.

Otherwise, identifying an adverse use of the property during the due-diligence phase of the purchase may offer you some options, including the right to walk away, depending on the circumstances. If the statutory period has not yet expired, addressing the encroachment with the other party right away may help. However, in certain situations, a Connecticut court may still grant the other party an easement, such as in the case of a landlocked piece of property. To fully understand your options, it may help to consult with an attorney.

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