The most troublesome easements are created without property owners permission. These prescriptive easements occur when a neighbor uses part of an adjoining property without its owner s permission. Use must be open, notorious, hostile and continuous for a specified number of years required by statute in each state. The period ranges from only five years in California to as long as 30 years in Texas. Obviously, Texas doesn t have many prescriptive easements.
Fences built in the wrong locations often contribute to prescriptive easement creation.
After open, notorious, hostile and continuous use without the landowner s permission continues for the required number of years, the prescriptive easement holder can perfect the easement in court. This is done by bringing a quiet title lawsuit against the landowner. To prevent a prescriptive easement from arising on your property, periodically check your boundaries to be certain a neighbor is not using part of your property without your permission. If you know of such use but you don t mind, you can grant permissive use, which prevents a prescriptive easement because the hostile element is not present. Virtually every property is subject to some type of easement.