What is a prescriptive easement, and when will one be granted? Real estate needs easy connection and access to be useful. Easements provide a method for access to a tract of land that may be cut off from a road by another piece of property. One type of easement in particular, a prescriptive easement, can provide a method for the owner of one piece of property to obtain rights over another’s property, even though that second owner never permitted such use. A party seeking a prescriptive easement bears the burden of proving five elements by clear and convincing evidence: use of the claimed easement that is “(1) continuous; (2) uninterrupted; (3) visible; and (4) adverse for (5) a period of 10 years.” Warren v. Dunlap, 532 S.W.3d 725, 728 (Mo. App. S.D. 2017). If a party can establish the necessary elements, the party is granted an easement over the neighboring property without the need to compensate that neighbor.
Generally, if one landowner gives another permission to use their land, a claim for a prescriptive easement will fail because the requirement for adverse use is not present. For example, in one Missouri case, the landowner gave members of the local community permission to use a road on his property 30 to 35 years before a neighbor sought a prescriptive easement over the same roadway. Leonard v. Robinson, 276 S.W.3d 868 (Mo. App. E.D. 2009). The landowner’s general permission to the community – even 30 years prior – was sufficient evidence for permissive use by the neighbor, and no prescriptive easement was granted. Land owners wishing to avoid a claim of prescriptive easement against them must be mindful of the potential claims of their neighbors and take steps to defeat and defend against such claims. The two most common methods are to 1) grant permission, or 2) interrupt the use during the 10 year period. Interrupting the neighbor’s use, such as by placing a gate, or denying access to the easement, even temporarily, should defeat the neighbor’s claim. Ultimately, all property dispute cases are fact intensive inquiries. Discussing these matters with an attorney at an early stage can help a landowner to defend his or her rights and avoid a lengthy and costly dispute.