If you aren’t exactly sure what a prescriptive easement is, don’t panic. Although getting to the bottom of just what prescriptive easements really mean in legal terms can be difficult, it isn’t impossible. If you are a land owner, this is part and parcel of the legal jargon that you can expect to encounter on a daily basis. You don’t want to be blindsided by them if they suddenly appear in the midst of a summons to court. This is why it’s worth taking some time to learn just what these sort of terms really mean.
Holding a Prescriptive Easement Is a Sort of Common Law Possession
Perhaps the easiest way to get a handle on just what prescriptive easements really are is to think of them as a sort of common law possession. A prescriptive easement is an easement that isn’t covered with any sort of legal documentation, such as the granting of rights to a certain piece of land via an official will or boundary sharing agreement. At the same time, holding this right isn’t exactly in the same boat as squatting on someone else’s property. The relationship is a bit more complex than that.
What Kind of Conditions Do Prescriptive Easements Occur Under?
There are a number of conditions which may call for the granting or legal recognition of a prescriptive easement. Some of these situations may include, but will not be limited to, the following:
- Resolving an issue such as a fence that infringes on another person’s property.
- Allowing one person to drive to work on a road that cuts through someone else’s property.
- Allowing a person to build a shed or barn that partially resides on someone else’s property.
- Resolving a dispute over a home addition that may partly infringe on another person’s property.
- Allowing one person to graze cattle on another person’s property.
- Allowing a person to store equipment on or move it through another person’s property.
How Can Another Person Obtain Prescriptive Easement Rights On Your Land?
There are a number of ways in which a neighbor can obtain the right to a prescriptive easement over part of your land. If they have recently begun to take advantage of part of your land for their own purposes, you have every right to stop them. However, if after a certain period of time, you have not legally challenged them, they can use your lapse in judgment against you. They can take you to court and obtain an adverse easement. This means that they can legally force you to grant them the use of part of your land for the purposes they state in their suit.
How Can You Avoid Becoming the Victim of a Prescriptive Easement?
There are a number of ways in which a prescriptive easement can harm you. You may not wish to be disturbed by another person continually using the road that cuts through your property. This person may engage in other activities in addition to the activity that is legally allowed. If you would like to stop this person from taking advantage of you and your property, it’s an excellent idea to insist on the signing of an express easement that will spell out their exact rights in legally documented form. This will give you the right to alter or terminate the agreement if the other party does not adhere to it.
It’s Important That You Know Your Rights As a Land Owner
Becoming the victim of an adverse easement is no laughing matter. Granting or honoring a prescriptive easement is one thing, but losing rights over part of your land is a whole other. This is why it is so crucially important for you to know your rights as a land owner. Not only should you know your rights but you should also be prepared to enforce and defend them. Good fences make good neighbors, but good laws make far more trustworthy neighbors.
affirmative and negative easements
affirmative and negative easements
Easements are agreements which pertain to the use or conservation of a certain area of land. Most easements that are entered into will fall under two categories. These include affirmative and negative easements. While both are similar in terms of being – in most cases – binding legal arrangements, there are also some significant differences which need to be recognized.
What Does an Affirmative Easement Consist Of?
The differences between affirmative and negative easements relate mostly to the freedoms or restrictions that they bestow upon both parties that enter into the agreement. In the case of an affirmative easement, the agreement is designed to give the holder the right to do something. This something will be specifically stated in the terms of the agreement, and the boundaries of this action will also be defined.
Meanwhile, the affirmative easement will also require that the owner of the property do a specific something. This may include allowing the holder of the easement the right to cross or use the road that cuts across the property holder’s property. Most easements will involve an agreement that falls into the affirmative category.
What Does a Negative Easement Consist Of?
A negative easement is a whole other matter. This type of ease involves a promise made by the holder of the property not to do a specific something. For example, a negative easement may bar a land owner from developing their land for private or commercial use. It may also involve not building any structures on their property that stand more than a certain agreed upon height.
Negative easements are rather less common today than affirmative easements. This is because such rules and regulations are usually covered by homeowner’s associations. Most such associations will require the owner of the land to agree sign a series of documents known as Codes, Covenants, and Restrictions (CCR).
What Are Modern Examples of an Affirmative and Negative Easement?
Depending on the situation, you may choose to enter into either an affirmative or negative easement with another party. Some of the situations in which you may choose to do so may include, but will not be limited to, the following:
- An affirmative easement may cover a situation where a person is granted the right to use a certain road on your property.
- An affirmative easement may be granted to allow a person to build a structure, such as a barn or shed, that cuts partially across or into your property.
- An affirmative easement may cover a situation in which a person is allowed to make an addition to their home, such as a deck or balcony, that cuts partially across or into your property.
- A negative easement may be issued to stop a landowner from developing a certain portion of their land for private use.
- A negative easement may be issued to stop a landowner from building a large fence that blocks off public view of a mountain or other scenic area.
- A negative easement may prevent a land owner from building additional structures on their land that are incompatible with the stated rules of their homeowner’s association.
It’s Important to Know Your Rights as a Landowner
Before you enter into an easement of any kind, whether affirmative or negative, it is very important for you to be fully aware of your rights as a landowner. You should be aware that you cannot be forced into signing either an affirmative or negative easement against your will. You cannot be legally compelled to sign an agreement that gives another party the right to perform any sort of action on land that you hold as property. If such compulsion exists, you have the right to seek legal aid to put a stop to it.
In some cases, you do enter into a sort of negative easement by signing your homeowner’s agreement documents before taking possession of your new property. However, any perceived breach of these documents will be addressed first in a meeting with your local homeowners’ association representatives rather than in a suit brought against you in a court of law.