Prescriptive Easement. A prescriptive easement is not written and does not arise from a mutual agreement. A prescriptive easement occurs when someone uses the land of another for a period of over 15 years. Two common examples are owners of land traveling over adjacent property to access their land or a lake. To qualify as a prescriptive easement, the following elements must be met: the use of the easement must be adverse, the user must believe he or she has a claim of right to use the easement, the use must be continuous (uninterrupted), and open, notorious, peaceable, and with actual or presumed knowledge of the owner of the subservient parcel.
Because the use of the subservient parcel was for ingress and egress (access, or coming and going), the dominant parcel is not gaining complete ownership of the land (that would be adverse possession). What the dominant parcel gains is an easement to continue using the land in the same way that has been occurring, specifically the right to continue coming and going over the easement area.
Key to northern Michigan, the use required to meet the elements (specifically continuous and open) depends on the type of land. Obviously a driveway in a subdivision will see more use (and will likely be paved and maintained) than a two-track on undeveloped land. There is actually a higher standard applied to undeveloped land in rural areas—see this article.
Because easements are granted to land, not to people (legally referred to as an easement appurtenant, not an easement in gross), an interesting feature called “tacking” can occur. A current owner of land can “tack” on to the uses of the prior owners of land. For instance, if a person has owned Parcel A for 8 years and has continuously used Parcel B to access his land, that is not enough time to establish a prescriptive easement. However, if the prior owner(s) of Parcel A demonstrated the same use for 7 years or more, the 15 year requirement can be met. Once established, the easement attaches to the land, and thus the right to use the easement passes with the property transfer.
Issues which often arise from prescriptive easements are:
· Whether the elements necessary to create the prescriptive easement are met
· Whether the route used has remained consistent for 15 years
· Whether the current use of the easement matches the historical use
· Whether the use of the property was hostile or with permission
· An expansion of the historical use, either by different uses, more use, or more users of the easement
· Whether the easement holder can make improvements to the easement
