Rights in real property - Prescription

Learning Outcomes

After reading this article, you will be able to explain what prescription means in real property law, identify the requirements for acquiring rights by prescription (especially prescriptive easements), distinguish prescription from adverse possession, and apply these principles to MBE-style questions. You will also recognize common exam pitfalls and be able to answer questions on this topic with confidence.

MBE Syllabus

For MBE, you are required to understand the rules governing the acquisition of rights in real property by prescription. This includes:

• Recognizing the difference between prescription and adverse possession.
• Identifying the elements required to acquire a prescriptive easement.
• Distinguishing between types of prescriptive rights (easements vs. title).
• Understanding the limitations and defenses to prescriptive claims.
• Applying these principles to fact patterns involving long-term use of another’s land.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a requirement for acquiring a prescriptive easement?
   1. Open and notorious use
   2. Use with the owner’s permission
   3. Continuous use for the statutory period
   4. Adverse use
2. A neighbor uses a path across another’s land openly, without permission, for 15 years (the statutory period). The owner objects for the first time in year 16. Has the neighbor acquired a prescriptive easement?
   1. Yes, because the use was open and adverse for the statutory period
   2. No, because the owner eventually objected
   3. No, because the use was not exclusive
   4. Yes, because the use was with the owner’s consent
3. Which of the following best distinguishes prescription from adverse possession?
   1. Prescription gives title to land; adverse possession gives only use rights
   2. Prescription requires exclusivity; adverse possession does not
   3. Prescription gives use rights (like easements); adverse possession gives title
   4. Both require the owner’s express permission

Introduction

Prescription in real property law refers to the acquisition of certain rights in land—most commonly easements—through long, continuous, and adverse use. Unlike adverse possession, which can result in acquiring title to land, prescription typically results in a right to use another’s land in a specific way, such as a right-of-way. Understanding the requirements for prescription and how it differs from adverse possession is essential for the MBE.

Prescriptive Easements: The Core Concept

A prescriptive easement is a non-possessory right to use another’s land, acquired by meeting specific legal requirements over a statutory period.

Key Term: Prescriptive Easement A right to use another’s land for a specific purpose, acquired by continuous, open, and adverse use for the statutory period, without the owner’s permission.

Elements Required for Prescription

To acquire a prescriptive easement, the following elements must be satisfied:

1. Open and Notorious Use: The use must be visible and obvious, so the owner has a reasonable chance to discover it.
2. Adverse and Hostile Use: The use must be without the owner’s permission and inconsistent with the owner’s rights.
3. Continuous and Uninterrupted Use: The use must occur regularly for the entire statutory period (often 10–20 years, depending on the jurisdiction).
4. Statutory Period: The use must last for the full period required by state law.

Key Term: Adverse Use Use of land without the owner’s permission, in a manner inconsistent with the owner’s rights.

Permission Destroys Prescription

If the owner gives permission for the use, the use is not adverse, and the statutory period does not run. Occasional or temporary interruptions, or sporadic use, may also prevent the acquisition of a prescriptive right.

Exclusivity Not Required

Unlike adverse possession, exclusivity is not required for a prescriptive easement. Multiple people may acquire a prescriptive easement over the same path if all other requirements are met.

Prescription vs. Adverse Possession

Prescription and adverse possession share similar requirements (open, adverse, continuous use), but their outcomes differ.

Key Term: Adverse Possession The acquisition of title to land by continuous, open, exclusive, and adverse possession for the statutory period.

Key Term: Prescription The acquisition of a right to use another’s land (not title) by continuous, open, and adverse use for the statutory period.

Limitations and Defenses

• Permission: If the owner grants permission, prescription cannot arise.
• Interruption: If the owner successfully interrupts the use before the statutory period ends, prescription is prevented.
• Government Land: Prescriptive rights generally cannot be acquired against government-owned land.

Worked Example 1.1

A homeowner uses a shortcut path across a neighbor’s land to reach a bus stop. The homeowner walks this path daily, openly, and without permission for 12 years. The statutory period is 10 years. The neighbor never objects or gives permission.

Question: Has the homeowner acquired a prescriptive easement?

Answer: Yes. The use was open, adverse, and continuous for more than the statutory period, and was not with permission. The homeowner now has a prescriptive easement to use the path.

Worked Example 1.2

A group of hikers regularly cross a private field using a visible trail. The landowner posts a sign reading “Hikers Welcome.” After 15 years, the hikers claim a prescriptive easement.

Question: Will the hikers succeed?

Answer: No. The posted sign shows the owner gave permission, so the use was not adverse. Prescription cannot arise where the use is permissive.

Exam Warning

Exam Warning: Do not confuse the requirement of exclusivity for adverse possession with prescription. Prescriptive easements do not require exclusive use—shared use can still meet the requirements.

Revision Tip

Revision Tip: Always check whether the use was with or without the owner’s permission. If the facts show permission, prescription fails.

Key Point Checklist

This article has covered the following key knowledge points:

• Prescription allows acquisition of use rights (not title) over another’s land by long, open, and adverse use.
• The elements for a prescriptive easement are open and notorious use, adverse use, continuous use, and the statutory period.
• Permission from the owner defeats prescription.
• Exclusivity is not required for prescriptive easements.
• Prescription cannot be used to acquire rights against government land.
• Prescription is distinct from adverse possession, which gives title.

Key Terms and Concepts

• Prescriptive Easement
• Adverse Use
• Adverse Possession
• Prescription