Adverse possession v. Prescriptive easement

Boundary disputes arise in many ways. However, at their core, they all share a common characteristic: a legal boundary line is being ignored.

Provided that the boundary line has been ignored for the requisite period of time (usually ten years), the user can acquire title to the other’s property. What they acquire might be “fee simple” ownership of the property or they might acquire a “prescriptive easement.”

“Fee simple” ownership is, basically, ownership of the property. If the user had “exclusive” possession of the property then they would acquire “fee simple” ownership through adverse possession. An adverse possessor would do something to exclude the true owner and the public from the area of possession. Typically, this would involve fencing in the area.

A “prescriptive easement” would be acquired if the user had made use of another’s property for a specific purpose and the use did not exclude the true owner and/or the public. Prescriptive easements often involve driveways or pedestrian pathways.

The distinction is critical and has far reaching implications. Adverse possession will result in new boundary lines. The adverse possessor’s use of the property will not be limited. A prescriptive easement, on the other hand, will leave the original boundaries in place and the possessor’s use will be limited to the activity that gave rise to the prescriptive easement.

If a dispute arises, claimants may often claim both adverse possession, in fee, as well as the creation of a prescriptive easement. A judge will decide on which result depending on how the evidence develops and is presented.




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