🚶‍♂️ What Is an Easement by Prescription in Real Estate?

An Easement by Prescription is a legal right to use another person’s property that is gained through continuous, open, and unauthorized use over a specific number of years. It forms when someone uses a portion of land—such as a driveway or pathway—long enough for the law to recognize their right to keep using it.

How an Easement by Prescription Works

Unlike a standard easement created by agreement or deed, a prescriptive easement is gained through long-term use without permission. Most states require:

  • Open and notorious use — visible and obvious to the property owner.
  • Continuous use — used regularly for a set statutory period (often 5–20 years).
  • Hostile use — use without the owner’s permission.
  • Exclusive or defined use — used consistently in the same manner.

If these conditions are met, the user may gain a permanent legal right to continue using the property.

Why Easements by Prescription Matter

For Property Owners:

  • Unchallenged use can lead to the loss of exclusive control over part of the property.
  • May affect property value and future development plans.
  • Can lead to legal disputes or quiet title actions.

For Long-Term Users:

  • Provides a legal path to secure ongoing access or use.
  • Protects long-standing uses such as driveways, pathways, or utility access.
  • Resolves conflicts when an owner suddenly blocks access after years of use.

Example of a Prescriptive Easement

  • A neighbor has used a path across your land to reach a lake every summer for 15 years.
  • You never gave permission and never blocked access.
  • State law sets a 10-year period for prescriptive rights.

In this case, the neighbor may legally gain the right to continue using the path.

Why Prescriptive Easements Matter for FSBO Sellers

Easements—especially prescriptive ones—can impact a home sale if buyers discover unauthorized or long-term use of the property.

  • May require disclosure depending on state law.
  • Could affect property boundaries or access points.
  • Might reduce or increase property value depending on use.
  • Buyers may request clarification during inspections or title review.

Listing with Flat Fee MLS through Brokerless helps sellers reach buyers prepared for these considerations.

Frequently Asked Questions

How long does it take to gain a prescriptive easement?
Most states require 5–20 years of continuous use.

Does a prescriptive easement transfer when the property is sold?
Yes. Once established, the easement stays with the land.

Can a landowner prevent a prescriptive easement?
Yes. Posting signs, granting written permission, or blocking access interrupts the required legal timeline.

Is a prescriptive easement the same as adverse possession?
No. Adverse possession can transfer ownership, while a prescriptive easement only grants use.