Differences between adverse possession and prescriptive easement

This article looks at the differences between adverse possession and prescriptive easement.

In the world of real estate law, adverse possession and prescriptive easement are similar concepts in the sense that they both allow an individual to obtain rights to another person's property. These two legal concepts typically apply in boundary disputes when an individual can prove that he or she has openly used another person's property for an extended period of time. However, while adverse possession and prescriptive easement do achieve similar aims, they also have important differences between them that are important to know about for anybody making or defending against a claim.

Adverse possession

Adverse possession is a legal doctrine whereby title to a portion of a person's property is granted to another person. Adverse possession is granted when one person makes open and notorious use of another person's property for a period of 20 or more continuous years. The common law of Massachusetts states that the use of the property must have been open, notorious, adverse, and exclusive for those 20 years. When adverse possession occurs, the property is taken into ownership by the individual who has made open use of that property for the past two decades.

Prescriptive easement

Prescriptive easement, like adverse possession, also grants certain rights to a property by those who have made use of that property for an extended period of time. The crucial difference between adverse possession and prescriptive easement is that in the case of prescriptive easement, the use of the property is not exclusive to one party. Furthermore, prescriptive easement does not grant title to the land in question, but merely grants certain rights to that land.

Two examples

Understanding the difference between adverse possession and prescriptive easement may be easier by looking at two examples. In the first case, a fence has been built by person A that encroaches onto person B's property, meaning that a portion of person B's property now falls into person A's use. If person A makes exclusive use of that land for a period of 20 years, such as by mowing it and maintaining the fence line, then he or she may be able to make a claim for adverse possession, which would grant person A title to the portion of land that originally belonged to person B.

In contrast, if person B has a driveway that person A openly uses to reach his or her own property, then person A may eventually be able to make a claim for prescriptive easement, which would allow him or her to continue using person B's driveway without actually gaining title to the property on which the driveway lies.

Real estate law

Adverse possession and prescriptive easement are just two issues that often arise in real estate law, especially when border disputes are at play. For anybody who is making or defending against such claims it is important to have experienced legal advice at hand. A real estate attorney can help property owners establish their rights to whatever property is in question and provide effective legal representation during a boundary dispute.