DISCLAIMER: THE INFORMATION CONTAINED HEREIN IS SOLEY FOR EDUCATIONAL PURPOSES. IT IS NOT LEGAL ADVICE OR LEGAL AUTHORITY AND IS ONLY THE AUTHOR’S INTERPRETATION OF PROPERTY LAW ON THE SPECIFIC ISSUES DISCUSSED.
Introduction: Property law can be complex, often involving nuanced concepts that dictate how individuals can acquire and maintain rights to land. Two commonly misunderstood doctrines in this field of law are prescriptive easements and adverse possession. In this blog post, we will explore the key differences between these legal principles, shedding light on how they impact land use and ownership.
Prescriptive Easements: A prescriptive easement is a right granted to an individual to use another person’s property, usually a portion of it, for a specific purpose. Unlike traditional easements, which are typically granted by the property owner, prescriptive easements arise through continuous and open use of the land without the owner’s permission.
Here are the essential elements of a prescriptive easement:
- Continuous Use: The individual seeking a prescriptive easement must use the land consistently and without interruption for a specified period. The duration varies by jurisdiction often ranging from 5 to 20 years. For Nebraska, the duration is 10 years.
- Open and Notorious Use: The use must be visible and obvious, making it known to the property owner. The theory is that the owner has the opportunity to object but doesn’t do so.
- Hostile Use: The use of the land must be without the owner’s permission. “Hostile” in this context doesn’t imply animosity but rather a lack of permission.
- Exclusive Use: The person seeking the easement must use the land exclusively for their benefit. Adverse Possession:
Adverse possession, on the other hand, is a legal doctrine that allows someone to gain ownership of another person’s property by occupying and using it openly and continuously for a specified period.
The key elements of adverse possession include:
- Actual Possession: The claimant must physically occupy and use the property as if they were the true owner.
- Open and Notorious Possession: Similar to prescriptive easements, the possession must be visible and obvious to the property owner.
- Hostile Possession: The use of the land must be without the owner’s permission. Again, “hostile” in this context means lacking permission, not necessarily adversarial.
- Continuous Possession: The possession must be uninterrupted for a statutory period, which again typically ranges from 5 to 20 years, depending on jurisdiction, and is 10 years in Nebraska.
Key Distinctions: While both prescriptive easements and adverse possession involve the concept of continuous, open, and hostile use, the crucial distinction lies in the nature of the rights acquired. A prescriptive easement grants only a right to use the land for a specific purpose, while adverse possession results in a transfer of ownership.
Conclusion: Understanding the differences between prescriptive easements and adverse possession is vital for property owners and those navigating the intricacies of property law. Whether you find yourself on the side of protecting your property rights or seeking to establish them, a clear comprehension of these legal principles is essential for informed decision-making in the realm of real estate.
About the Author
Travis M. Jacott
Adams & Sullivan, PC, LLO
Travis joined Adams & Sullivan in 2015. Mr. Jacott’s practice focuses on litigation, real estate development and transactions, municipal law, and estate planning.
During his time at Adams & Sullivan, Travis has assisted the firm with various matters, including extensive legal research, preparing legal briefs that were filed in numerous adjudicative bodies, including the U.S. District Court for the District of Nebraska as well as the Eighth Circuit U.S. Court of Appeals.
Growing up in Sarpy County, Travis M. Jacott earned his Bachelor’s degree from the University of Nebraska-Omaha and went on to graduate from Creighton University School of Law and was admitted to practice law in the State of Nebraska.