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Prescriptive Easements - Can You Use That Path?

Atz Law Office LLC is an Indiana law firm and all information contained in this article is based solely upon Indiana law. This article is meant to be informational only and is not legal advice. Please consult an attorney for assistance with your legal matter.

In the practice of real estate law, it's common to encounter matters related to rights-of-way or easements across property. Whether establishing a legal right to an easement, or seeking a legal declaration denying an easement over land, easements often hold great value and therefore end up as subjects of disputes.

There are a few ways to establish an easement in Indiana. One form is an easement conveyed by grant. In the interest of longevity and clarity, this grant is best stated expressly in a recorded deed that clearly identifies the land subject to the easement, the land gaining access by way of the easement and a specific, legal description of the easement itself. An express easement of this type is less likely to end up the subject of a courtroom argument.

Much more likely to cause controversy is the prescriptive easement. A prescriptive easement is a right of way over land claimed by way of adverse possession without title. A person claiming a prescriptive easement does not need to produce any legal documentation of their right to use the property. Instead they must show a history of already using the easement as if it were their own.

Historically the common law doctrine of adverse possession required the claimant to take hostile possession of the land under a claim of right. This possession must have been actual, exclusive possession that was open and notorious and continued for the statutory period of time. The Indiana Supreme Court rephrased these elements in the 2005 case Fraley v. Minger. The Court found that an adverse possession claimant must show clear and convincing proof of control, intent, notice, and duration. The Court clarified that this new formula also applied to prescriptive easements in the later 2005 case Wilfong v. Cessna Corp. So … what do each of those elements mean?

The Fraley Court said that the new element of “control” reflects the former element of “actual”. A claimant must exercise use and control of land that is “normal and customary considering the characteristics of the land.” In terms of an easement, a showing of control is best achieved by showing that the claimant actually uses and maintains the right of way. If the easement is over land regularly mowed and/or maintained by the land owner, the claimant may not need to show a great degree of maintenance. However, showing that the easement is used for access and that the claimant does maintain that access by mowing or removing limbs and other obstructions is a good way to establish the necessary element of control.

Continuing their explanation, the Fraley Court said that the new element of “intent” reflects the former elements of “claim of right”, “exclusive”, “hostile” and “adverse”. A claimant must prove their intent to claim a right to use the easement without permission of the land owner. The exclusive component is important, though it doesn’t mean that no other person can use the easement. Instead exclusive means that a claimant’s rights do not depend on the rights of other people. For instance, if a person uses an easement only because it is known to be public access, then a loss of access by the public would also mean a loss of access to that particular person. “Intent” can also be shown by use that is hostile and adverse to the land owner. An example of such use would be actions taken by the claimant to prevent development on the land that would otherwise interfere with the right of way.

The Fraley Court further stated that the new element of “notice” reflects the former elements of “visible”, “hostile” and “notorious”. The key here is that the land owner has notice of the claimant’s intent to use and control the easement. This notice can be actual notice or constructive notice. Actual notice means that the land owner has seen the use with his own eyes, or has been directly notified of the claimant’s use in some manner. Constructive notice is a legal fiction by which a court will presume notice has been received whether it actually was or not. An example of constructive notice in matters of real estate is the land recording statutes. When an interest in land is recorded, anyone in the chain of title of the property subject to that record will be deemed to have constructive notice of the recorded interest. In other words, they should have done due diligence and found the record, whether they did or did not may not matter.

Finally, the Fraley Court concluded by stating that the new element of “duration” reflects the former element of “continuous”. Each of the previous three elements must be satisfied continuously for the statutory period of time. In Indiana, the statutory period of time to establish a prescriptive easement is twenty years. Frequency of use does not determine this element. It is only necessary that the use reflects the ordinary use of the land. For example, if the easement provides access to a lake and is only used in the summer months while visiting a lake cottage, a court is likely to find that seasonal use is continuous in keeping with the ordinary use of a summer cottage.

A claim of prescriptive easement can be challenging to prove, but may be appropriate in many situations. If you have questions about an easement issue, please feel free to contact a lawyer at Atz Law Office LLC. We'll be happy to talk it over with you.

JD AtzAtz Law Office LLC