What is Adverse Possession? What is Prescriptive Easement?

There are some interesting real estate terms that I would like to clarify for my readers; two of these are adverse possession and prescriptive easement.   Adverse possession occurs when someone occupies an entire property without the owner’s permission.   The law says one’s occupancy must be “open, notorious (obvious), hostile, exclusive and continuous.”

In addition, the occupant must pay the property taxes.  The number of years of hostile occupancy required varies by state up to 30 years.  The shortest time is five years in California.

A prescriptive easement can arise when you occupy just part of a property, such as a driveway.  The “open, notorious, hostile and continuous” requirements apply; however, the hostile use need not be exclusive and one does not have to pay the taxes on the property.  Again, the number of hostile-occupancy years varies by state.

To perfect a claim for adverse possession or a prescriptive easement, the claimant must bring a quiet title lawsuit in the local court.  The most common defense to such a lawsuit is that the legal owner may say he gave the claimant permission to use the property and if the judge believes him, that defense will defeat the claim.