Trustpilot
Loading...
Loading...Loading...
Here's how it all fits together in the closing process. You're 10 days from closing on a house, and your title company runs their standard title search through the county records system. The system flags something unexpected: a prescriptive easement allowing the neighbors to cross your backyard to reach a community lake. The entire closing workflow stops until this gets resolved.
I've processed thousands of loan applications at AmeriSave, and title search complications represent one of the most common bottlenecks in the closing pipeline. According to recent industry analysis, nearly one-third of all property transactions are delayed or prevented due to title problems that weren't properly addressed. What the documentation says should be a simple property transfer becomes a complex negotiation about property rights that have been accumulating for years.
In practice, what actually happens is this: most buyers don't think about easements until the title search surfaces them. Then suddenly you're trying to understand centuries-old property law while your closing date approaches and your rate lock might expire. The system forces you to make critical decisions on compressed timelines without proper context.
Let me walk you through exactly how prescriptive easements work in the real estate transaction system so you can handle them efficiently when they appear in your closing documents.
A prescriptive easement, sometimes called an easement by prescription, represents a legal right that someone acquires to use another person's property for a specific purpose. According to legal definitions established by common law, these easements arise when someone uses property they don't own in a manner that's open, notorious, continuous, and adverse to the owner's rights for a time period specified by state law.
The documentation said these easements require four elements, but in practice, courts interpret each element differently depending on jurisdiction. Here's how the system actually processes these claims.
Open and Notorious Use means the property use is visible and obvious to anyone paying attention. The property owner should reasonably be aware that someone is using their land. In the transaction workflow, this requirement gets verified through site inspections, neighbor interviews, and historical documentation. If your neighbor walks across your side yard every single day to reach their mailbox, and multiple people can testify to witnessing this pattern, the open and notorious element is satisfied.
Adverse or Hostile Use creates confusion because the terminology sounds confrontational when the legal meaning is technical. In the system, this simply means the use happens without the property owner's explicit written permission. The absence of a permissive use agreement in the property records establishes adversity. If someone has documented written permission to use the property, the system cannot recognize a prescriptive easement because the adverse element fails.
Continuous Use requires the property use to persist throughout the entire statutory period without significant interruption. According to legal precedent established in cases like Beebe v. DeMarco, the use doesn't need to be literally constant every single day. It just needs to be consistent with the nature of the use. The system evaluates continuity based on reasonable use patterns rather than absolute daily occurrence. If schoolchildren use a shortcut across your property only during the school year, the pattern still qualifies as continuous because it matches the expected use case.
The Statutory Period varies dramatically by state law, creating complications for multi-state operations. According to research compiled by legal databases, California requires only 5 years of continuous use, while Washington and Oregon require 10 years, Connecticut mandates 15 years, and some states require 20 years or more. This state-by-state variation makes automated title search systems more complex because the validation rules change based on property location.
The classic implementation scenario involves students using a shortcut to school. Here's how the system processes this over time. A property owner lives between a residential neighborhood and the local elementary school. For over a decade, children cut across the corner of this property every school day to reach the school faster. The property owner knows about it, watches from the window, but never implements a blocking mechanism like a fence or posts formal no-trespassing notices.
When that property transfers to a new owner through the closing system, the new buyer wants to install a perimeter fence. The system now must evaluate whether a prescriptive easement has formed. Those schoolchildren and their families could potentially assert a legal claim that they've established a prescriptive easement through years of continuous use. If they can prove all the required elements under their state's law, the new property owner might be legally prohibited from blocking that pathway.
Let me show you how the system evaluates this claim in a structured process.
Element 1 - Open and Notorious: The entire school community knew about and used this pathway regularly. The property owner could see the children crossing and was clearly aware of the use. The system can verify this through multiple witness statements and historical evidence. Element satisfied.
Element 2 - Continuous: Although children didn't use the path during summer vacation, they returned consistently every school year for over a decade. Courts have established that seasonal use can still qualify as continuous if it's consistent with the nature of the use. The system accepts intermittent use when it follows a predictable pattern. Element satisfied.
Element 3 - Adverse or Hostile: The system checks property records for any permission agreements. Finding none, and with evidence that the children never asked for permission and the property owner never granted explicit consent, the adverse element is established. The property owner's awareness combined with lack of action creates the adverse status. Element satisfied.
Element 4 - Statutory Period: The system checks state law requirements. If this situation occurred in California, where only 5 years are required, the easement would be firmly established. In Washington, where 10 years are required, a decade of use would also create a valid easement. In Connecticut, with its 15-year requirement, the claim would still succeed.
When all elements satisfy state requirements, the system recognizes a valid prescriptive easement that must be documented in the property title.
My biggest integration challenge last year involved helping loan processors understand the difference between similar but distinct property rights concepts. That same principle applies here because prescriptive easements and adverse possession are frequently confused in closing documents but trigger completely different processing workflows.
A prescriptive easement grants a specific right to use property in a particular way. The original owner retains full ownership and title to the land in the system's records. With adverse possession, the person using the property can actually claim ownership transfer if they meet more stringent requirements.
In practice, what actually happens in the system is this. Adverse possession typically requires the same open, notorious, continuous, and hostile use as prescriptive easements, PLUS exclusive possession where you treat the property as if you own it, PLUS payment of property taxes on the land in many states, PLUS longer time periods in most states. While prescriptive easements often require 5 to 20 years depending on the state, adverse possession frequently demands 15 to 30 years.
Here's a practical workflow example that clarifies the difference. Your neighbor builds a fence that encroaches 15 feet onto your property. If that encroachment continues undisputed for your state's adverse possession period and your neighbor pays property taxes on that disputed strip, the system might process an actual ownership transfer claim. That's adverse possession, which requires title correction in property records. But if your neighbor just uses your driveway to reach their garage for the required number of years, they gain the right to continue using your driveway but the system maintains your ownership in the title records. That's a prescriptive easement, which requires an easement notation but no ownership transfer.
This distinction matters tremendously in transaction processing. According to U.S. Census Bureau data from Q2 2025, approximately 65% of Americans own their homes, making property rights issues like easements relevant to tens of millions of families. When the title search system flags a prescriptive easement versus an adverse possession claim, the closing workflow follows completely different resolution paths.
Whether a prescriptive easement makes a property more or less desirable depends entirely on the buyer's situation and priorities. Here's how the system processes these evaluations based on what I've seen in thousands of transactions at AmeriSave.
Discovery of a prescriptive easement during the title search triggers an immediate hold in the closing workflow and creates negotiating leverage. The buyer can request a price reduction reflecting the burden the easement places on the property through a formal amendment to the purchase agreement. When you eventually sell the property, though, the system will process similar concession requests from future buyers because the easement transfers with the title.
In the system, this works like this: if the easement allows the neighbor to use a 10-foot-wide pathway across your backyard, the appraisal system effectively reduces usable property area. In some markets, the automated valuation models adjust by several thousand dollars. In my experience processing these transactions, I've seen price adjustments ranging from $2,000 to $15,000 depending on the easement's scope and property values.
Here's something that surprised me when I first integrated our closing system with insurance verification workflows. When someone has a legal right to use your property through a prescriptive easement, you may bear some liability if they're injured on your property. The extent of that liability varies significantly by state law, requiring state-specific processing rules in the insurance verification system.
Some states apply traditional property owner liability rules, meaning the system must verify that your insurance covers dangerous conditions in the easement area. Other states limit your liability since the easement user is essentially a trespasser who gained legal status through continuous use rather than your invitation.
According to guidance from property insurance experts, the system should verify that your homeowner's insurance carrier has been notified about any prescriptive easements affecting your property. Some situations trigger additional general liability coverage requirements beyond standard policy limits. The insurance integration workflow must verify adequate coverage before the closing system can proceed.
For many homeowners, privacy matters more than money in the decision tree. If you value having complete control over your property and don't want neighbors or strangers regularly crossing your land, a prescriptive easement represents a legitimate system-exit point where you terminate the transaction. That's a valid decision path in the workflow.
Conversely, if the easement has minimal impact, maybe a utility company has access rights to maintain power lines at your property's edge, the system might process this as a standard easement notation with no material impact. AmeriSave's transaction workflow helps borrowers evaluate these tradeoffs by providing clear documentation about what the easement means for their daily property use, not just the legal technicalities.
When the title search system finds a possible prescriptive easement, the first thing it does is check the property's state because the rules for validation are very different in each state. I'll show you how different state systems deal with these claims.
The California System only needs 5 years of continuous use validation, which is one of the shortest statutory periods in the country. Because of this shorter time frame, the California system finds more problems with prescriptive easements than other states. The automated title search has to look at shorter periods of history, but it finds more possible claims.
Both the Washington and Oregon Systems need to be used for 10 years straight to be valid. In Cities Gas Co. v. W., Washington courts made it clear that Fuel Co. from 1942 that the use must happen with the owner's knowledge at a time when they could legally assert and enforce their rights. The system needs to check both the length and the knowledge part.
Connecticut System: Requires 15 years of continuous use validation, giving property owners more time to find and stop potential easement claims before they become legally binding. Validation periods that last longer make it less likely for prescriptive easement flags to show up in title searches.
The Midwestern and Southern State Systems often need validation periods of 20 years or more, which means that the historical records that need to be searched are much longer. The system has to look at longer time periods, but it finds fewer valid claims.
When the title search runs, knowing these state-specific processing rules will help you figure out how risky it is. If you're buying a home in California that was built only 8 years ago, any paths or access patterns that were made during construction could already be close to becoming prescriptive easements in the system. In Connecticut, that same property would still have to wait seven years for the system to accept a valid easement claim.
Most people who buy a home first learn about prescriptive easements when the title search system shows that one is on the property they are about to buy. Recent data on real estate transactions shows that title problems cause delays or stops in almost one-third of property transactions. Easements are a big part of these workflow problems.
The title search takes place during the due diligence period, which is usually 10 to 30 days after you sign the purchase contract, depending on your state and the terms of the contract. The title company's system looks at public records like deeds, mortgages, tax records, wills, divorce agreements, and court documents to find any claims, restrictions, or problems that could affect the title to the property.
If the system finds a prescriptive easement in the search results, the transaction workflow splits into several possible ways to resolve the issue.
When borrowers ask AmeriSave for help with these workflow choices, I always tell them to talk to a real estate lawyer who can look at the specific easement language and explain what it means in their state's legal system.
If you own property and want to stop prescriptive easements from forming in the system, you have two main ways to do so.
Timing is very important in this prevention workflow. The system has already confirmed that the easement is valid if the use has already gone on for the full legal period in your state. A fence erected after the easement forms doesn't eliminate the easement in the property records. It just makes it possible that you will have to take down the fence or let people get around it by law.
The most important thing is to write down the permission and make it clear that it can be revoked. A lot of property owners put up signs that say, "Private Property. Permission to cross land can be taken away at any time." This simple proof makes the use permissive instead of hostile, which means that the system no longer needs to meet the adversity requirement.
You can also give formal agreements that give specific people or groups permission to do things. For instance, if your neighbors have been using your driveway to get to their garage, sending them a letter giving them clear permission and saying that permission can be taken away at any time keeps the system from treating their use as a prescriptive easement while still keeping your relationship with them. The paperwork makes a record of permission in case there are any problems later on.
The legal system that deals with property rights is based on the idea that people should actively use and watch over their property instead of just owning it. Property law makes landowners keep an eye on and use their property instead of ignoring issues with property rights.
The system logic works like this: if you don't notice or do anything about someone else using your property for 5, 10, or 20 years, the legal system questions whether you really own that part of your land. If you don't protect your property rights when you have the chance, you lose them to someone who is actively using the land.
From the property owner's point of view, this might seem like a harsh way to process things, but think about it from the easement claimant's point of view in the decision tree. If you've been using a path to get to your home for 15 years, made improvements to keep it in good shape, and planned your whole day around that path, losing that right would be a huge change to your routine. The legal system recognizes both sides and strikes a balance by making easement claimants wait a long time and prove their case with strict proof.
One of the most important things to know about prescriptive easements is that they run with the land. This means that they are linked to the property record itself, not to specific people in the ownership database. If you buy a property that has a prescriptive easement on it, the system automatically transfers that burden to you, even if you didn't give the easement or even know about it before you bought the property.
The same goes for buying property that benefits from a prescriptive easement over a neighbor's land. The system gives you that benefit. You can keep using the easement rights that the previous owners set up.
The fact that property records are permanent makes the title search a very important part of the transaction process. As far as the U.S. According to data from the Census Bureau from the middle of 2024, about 65.6% of Americans own their homes. The Federal Reserve says that the median home price reached $492,300 in the fourth quarter of 2023. Since owning a home is the biggest financial asset for most families, it's very important to know what the system is really giving you.
AmeriSave's digital mortgage platform includes educational materials in the transaction process to help borrowers understand these property rights issues before the closing system runs. This makes sure you make smart choices about what is probably your biggest purchase.
I always tell people who want to borrow money that prescriptive easements are times when you need to go outside the normal processing workflow and talk to a real estate lawyer. I can explain how the system handles these problems and how the easement might affect your financing workflow, but a real estate lawyer can give you specific legal advice based on your situation and the laws in your state.
If the title search system flags a prescriptive easement on the property you're buying, you think someone might be establishing a prescriptive easement on your current property, you want to make a prescriptive easement claim over someone else's property, you're in a boundary dispute that might involve easement issues, or you need to know how much liability you have related to an easement, you should definitely talk to a lawyer.
Lawyers say that property value disputes over prescriptive easements can cost tens of thousands of dollars in legal fees. Before making any decisions about processing, it might be worth it to spend $500 to $1,500 on a lawyer consultation. This can save you a lot of money and trouble later on.
Real property law systems motivate landowners to engage with and oversee their property, rather than adopting a passive stance regarding property rights. The legal system sees prescriptive easements as real property rights that people earn by using the property for a long time. This can lead to situations that surprise new home buyers when they get the results of their title search.
The good news is that you can control the workflow if you know how the system handles prescriptive easements. When you do a title search on a property you're thinking about buying, you can find out about these problems and make smart choices about whether to go through with the deal, negotiate, or back out. If you own property, you can stop people from using it ahead of time by either blocking it or giving them written permission.
The bad news is that these problems won't go away just because you ignore them. Property rights are important legal ideas that have an impact on ownership records, liability exposure, and property value. No matter if you're just starting to buy a home or have owned your property for years, knowing how easements work in the legal system protects your interests and keeps your workflow from getting too expensive.
Every day, our operations team at AmeriSave helps first-time home buyers and experienced homeowners deal with these complicated property issues. Our digital tools and knowledgeable loan officers can help you with more than just the financing process. They can also help you with the legal and practical issues that can make the difference between a smooth purchase and a difficult one.
Are you ready to confidently deal with the challenges of owning a home? Every day, AmeriSave's skilled operations team helps home buyers and homeowners deal with these complicated property issues. Our digital platform helps you make smart choices throughout the home buying process by combining educational materials, automated tools, and personalized advice into the transaction workflow.
We're here to help you with your application quickly and give you all the information you need to reach your homeownership goals, whether you're finding prescriptive easements during your title search or want to learn more about other property rights issues. Let's look at all of your choices and figure out what will work best for you!
When property is split up through the recording system, a written agreement between property owners, explicit permission, or a reservation in a deed can create a regular easement. Through formal paperwork, the property owner gives another person or organization the right to use a certain part of their land for a specific reason. Prescriptive easements, on the other hand, happen without the property owner's permission or any written agreement in the system. They come about only through long-term, consistent use that meets certain legal requirements for validation. Formal contracts are usually used to negotiate and pay for regular easements. Prescriptive easements, on the other hand, develop over time without any formal processing. The system tells them apart by asking for permission. The property owner agrees to the arrangement in writing through regular easements. With prescriptive easements, the owner either doesn't know about the use or knows about it but doesn't do anything about it within the time limit set by law. When the system processes property sales, both types of easements stay with the land and go to new owners. However, prescriptive easements often surprise property owners who didn't know the system was validating them over time.
Once the system has confirmed an established prescriptive easement, it is very hard to end it. Once the easement holder meets all the legal requirements and the time period set by law runs out, they have a valid property right in the legal system that won't just disappear from the records because you want it to. Some workflow paths might end the easement, though. First, some state systems recognize abandonment as a reason to end an easement if the easement holder stops using it for a long time. However, just not using it isn't usually enough to end it. Most of the time, the system needs proof that someone wants to give up. Second, if the easement's original purpose is no longer relevant in the property use case, courts may revoke it as unnecessary. For instance, if a prescriptive easement gave access to a building that has been torn down and there are no plans to rebuild it, a court order might be able to end the easement. Third, you could talk to the easement holder and ask them to give up the easement voluntarily. You could offer them money or other ways to get to the property through a formal agreement. After that, the system processes the release and changes the property records. Fourth, if you can show that the easement was never legally valid in the first place because it didn't meet all the requirements for validation, you might be able to get it thrown out of the system in court. The easiest way to handle the easement is to accept that it is in the property records, keep insurance coverage for liability protection, and make sure that future buyers of the property know about the easement when the system processes your eventual sale.
Many homeowners don't know that prescriptive easements make it harder for insurance companies to process claims. Your normal homeowners insurance policy usually covers injuries that happen on your property, but having a prescriptive easement makes the process a little different. First, you should definitely let your insurance company's system know about any prescriptive easements that affect your property. If you don't tell the insurance company about known easements, they might not cover you if a claim comes up that has to do with the easement. Second, your insurance company's underwriting system might raise your premium because people using your property through the easement will make you more liable. The risk assessment algorithms take into account extra exposure. Third, you may need to buy more general liability insurance than what your standard policy covers in order to fully protect yourself from possible injury claims made by easement users. The system needs to check that there is enough coverage. Fourth, if you are responsible for keeping the easement area safe for users, your insurance should cover the costs of injuries that happen because you didn't keep that area safe through the claims system. Fifth, you should get a letter from your insurance company saying that their system knows about the easement and that your policy will cover claims that come up because of it. Some property owners buy umbrella liability policies that give them more coverage than their regular homeowners policy to protect them from risks related to easements in the insurance system. Because injury lawsuits can easily go over the limits of a standard policy, it's important to talk to an insurance agent about your coverage as soon as the property system documents prescriptive easements that affect your property. Homeowners who are careful with their money should think about how much their insurance might go up when they decide whether or not to buy property with prescriptive easements.
Yes, utilities and underground infrastructure systems can definitely have prescriptive easements. However, these situations are a little different from surface easements like pathways or driveways in that they require special processing. Utility companies often set up prescriptive easements for power lines, water pipes, sewer lines, or underground cables that run through private property as part of the infrastructure system. The open and notorious requirement might be hard to meet for underground utilities because the use isn't obvious from the ground. Courts have said that things like utility poles, manhole covers, meter boxes, or surface access points that can be seen from the outside meet the open and notorious requirement, even though the pipes or wires are actually underground. The important thing is whether the property owner could have reasonably found out about the utility use by looking at the visible infrastructure markers. Utility companies that access a property from time to time for maintenance or repairs can also prove continuous use, even if they don't do so every day. Courts understand that utilities only need to be physically present on occasion for maintenance and monitoring. One problem with utility easements is figuring out how far the easement goes in the legal system. Does it only cover the utilities that are already there, or does it also give people the right to put in more utilities later? Does it let maintenance workers come and go as they please, or does the utility company have to limit how much property use is affected? Because the system doesn't have clear rules for how to process these questions, they often end up in court. Utility easements by prescription usually have the same legal requirements for validation as surface easements. This means that the person using the easement must have done so continuously without permission for the required amount of time. If you find utility infrastructure on a property you're buying, the title search should find out if the utility company has recorded easements in the property system or if they're relying on prescriptive rights that may not be well documented in official records.
Finding an undisclosed prescriptive easement after the closing system has processed your purchase is frustrating, but knowing what to do about it will help you deal with it. First, know that prescriptive easements are recorded with the land, even if you didn't know about them. This means that the system has passed the easement burden on to you, even though you didn't cause it or agree to it. The easement burden is part of your property's title in the system, even if it wasn't properly disclosed during the transaction process. However, depending on the situation, you may be able to take legal action against other people. You might be able to sue the seller for fraud or failing to disclose important facts if they knew about the easement but didn't include it in the paperwork for the sale. Most states require sellers to fill out mandatory disclosure forms that list any known major problems or defects with the property title. If the seller's disclosure form asked about easements and they said there weren't any when they knew there were, that's a clear case of lying that the legal system can handle. You might be able to sue the title insurance company if your title insurance policy should have shown the easement during the title search but the system didn't flag it. Title insurance protects buyers from title defects that weren't found during the title search process, such as easements that were there when the buyer bought the property but weren't found until later. If an undiscovered prescriptive easement greatly lowers the value of your property, your title insurance policy should cover your losses up to the policy limits. As soon as you find the easement, you should file a claim with your title insurance company's processing system. Third, if your real estate lawyer or other professionals involved in the deal should have found the easement through reasonable diligence but the system didn't, you might have a case of professional negligence. The real-world effects of these legal options depend on whether you can show damages in the system. If the easement doesn't really affect how you use and enjoy the property, filing a lawsuit might cost more in processing fees than what you could get back from the court system.
Yes, you must keep paying property taxes on the full value of your land, even if some of it is burdened by prescriptive easements in the property records system. This makes for an awkward processing situation because you're paying taxes on property that other people have the right to use, but it shows how easements work in the system as limited use rights instead of ownership transfers. The official records show that the property owner still owns the whole parcel, including the part that is subject to the easement. The person who has the easement only has the right to use the property for a certain purpose, not the right to own it in the title system. The property records show that you still own the land, so you are still responsible for all of the property taxes that the assessment system calculates on it. In some places, you might be able to ask for a lower assessed value for your property because the easement makes it less useful. You can do this through the appeals process. Tax assessors should take into account all the things that affect the value of a property when they use their assessment algorithms. This includes easement burdens that make the property less useful or marketable. To get a property tax reduction, you need to file a formal appeal with your local tax assessment board and show through paperwork that the easement significantly lowers the property's value. Many small easements don't have much of an effect on the assessed value in the calculation system, so the reduction might not be worth the time and effort it takes to process the appeal. It can be very frustrating to think about how keeping the easement area safe might cost you money while other people use it. Your tax payments and maintenance costs are effectively paying for the easement holder's use, but you don't get anything in return. This imbalance is one reason why property owners should work to stop prescriptive easements from happening in the first place. These easements create ongoing costs in the tax and maintenance systems that the property owner doesn't get any benefits from.
Prescriptive easements usually lower the value of a property and make it harder to sell, but the degree of effect depends a lot on the type and scope of the easement in the property system. First, let's talk about how easements change the way we figure out value. An easement that lets utility companies come in every now and then to fix underground infrastructure might only lower the property's value by one to three percent in the appraisal system because it doesn't really affect how you use and enjoy the property. On the other hand, an easement that lets neighbors use your driveway every day or makes a public path through your backyard could lower the value of your property by 5 to 15 percent or more, especially if privacy is very important to you. Real estate appraisers look at the effects of easements by comparing the sales prices of properties that have easements to those that don't in the transaction database. However, the system can have trouble finding properties that are truly comparable. Because lenders limit loan amounts to a percentage of appraised value in their underwriting algorithms, the decrease in appraised value directly affects the amount of money you can borrow. When it comes to processing a resale, you must tell potential buyers about any known easements through required disclosure documents. Most states require sellers to fill out disclosure forms that specifically ask about easements, liens, and encumbrances as part of the transaction process. If you don't tell someone about a known prescriptive easement, you could be sued for fraud in court. Even if you tell buyers about the easement, it will still make it harder to sell because some buyers will drop out of the process as soon as they find out about the restriction. Buyers who are still interested will probably try to get the price down through the offer system, which means you'll probably have to accept less money than similar properties without easements are selling for in the market. Some buyers won't see easements as a problem, though, depending on what they care about most when making a decision. A buyer who plans to do a lot of work on the property may not care about a utility easement in their plans. A buyer who cares more about price than privacy might agree to an easement in exchange for a lower price. To make it easier to resell, the disclosure documents should be completely clear about the easement's existence, scope, and practical effects so that buyers can make smart choices before the transaction process gets too far along.
Fact Checked