Servitudes

Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant. Despite that traditional approach, the Texas …

Do prescriptive easements have to be “exclusive”? Read More »

The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs. This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass. However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to …

Is land use presumptively permissive or nonpermissive in the case of prescriptive easements? Read More »

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …

Prescriptive easements do not actually require “exclusive” use no matter what courts say Read More »