Sunday, February 12, 2012

Adverse Possession vs. Prescriptive Easements.

Question: "Would you consider doing a post on distinguishing between adverse possession and prescriptive easements? If an MBE had answer choices including the two (as separate choices), I don't know that I would be able to distinguish between them."


The similarities between adverse possession and prescriptive easements far outweigh the differences. Both result from the operation of the statute of limitations for trespass. In addition, both require that the following elements are satisfied: open and notorious, adverse, continuous and uninterrupted, for the statutory period.

The differences lie primarily in determining what is accomplished by satisfying those elements. With adverse possession, the goal is to acquire title to real property. For that reason, in addition to the elements above, an additional element is actual and exclusive possession of the property. If x has actual and exclusive possession which is open and notorious, adverse, continuous and uninterrupted for the statutory period, and the owner of the property does not take action to eject x within that time, then title to the property will vest in x.

Acquiring an easement by prescription, however, is not directed towards the goal of acquiring title to property. Rather, it's directed towards acquiring an easement, even though the formalities usually required to create an easement (for example a writing signed by the grantor) are not present. So, if x uses (rather than possesses) the land of y, and the use is open and notorious, adverse, continuous and uninterrupted, for the statutory period, the x has acquired an easement and can continue to use that land in the same manner as his previous use.

1 comment:

  1. Another difference also is in 'exclusive' use. In adverse possession, user uses the property exclusively for ten years. In prescription, user can be using the servient land with the owner - non exclusively. If user has used the land in that manner for ten years, he has prescriptive easement.