What Is the Difference Between Adverse Possession & Prescriptive Easement?

by Robert Alley
A fence over the property line can create a prescriptive easement, but rarely adverse possession

Adverse possession and prescriptive easements are both legal doctrines that allow a person to obtain a right to someone else's property by open and notorious use. In both cases a person uses the land over a long period of time. The difference is in the right obtained. Adverse possession grants outright ownership of real property while a prescriptive easement grants use for a limited purpose.

Intent

The intent of the person attempting to obtain property either through adverse possession or a prescriptive easement differs. In the case of adverse possession the intention is to obtain full ownership. A prescriptive easement only requires intent to use the property for a specific purpose like an access road. An examination of a person's intent is crucial in making the distinction between the two legal doctrines.

Possession

Adverse possession requires total possession of the parcel of land. The person attempting to acquire title by this means must act as if the real property is his and his alone. An attempt to obtain an easement by prescription does not require any possession. It only requires use. That use needs to follow a continuous pattern, such as driving down a dirt road almost every day to access another tract of land.

Action

Adverse possession requires more action. While a prescriptive easement can be obtained by using a neighbor's driveway over a long period of time, adverse possession results from a concerted effort to make it clear that ownership is being claimed. One way to do that is to obtain and record a quitclaim deed to the property. It puts the world on notice of the intent to acquire property by adverse possession.

Title

Adverse possession results in a fee simple title or absolute ownership. The title is just as valid as if purchased for valuable consideration. A prescriptive easement yields an easement as the name implies. An easement is the right to use a defined piece of real estate for a defined purpose. There is no title and no fee simple ownership.

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About the Author

Robert Alley has been a freelance writer since 2008. He has covered a variety of subjects, including science and sports, for various websites. He has a Bachelor of Arts in economics from North Carolina State University and a Juris Doctor from the University of South Carolina.

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