Prescription

Detailed Definition of Prescription

Prescription refers to the acquisition of rights or property interests through prolonged, continuous, open, and uninterred use. This process often pertains to acquiring an easement or a property title through adverse possession. In the context of real estate, prescription allows an individual to gain legal rights or ownership over a portion of another’s property after meeting specific statutory conditions over a certain period.

Key Components

Continuous Use: The property or right must have been used continuously for a statutory period without interruption.
Open and Notorious Use: The use of the property must be visible and obvious to anyone, including the property owner.
Adverse Use: The use must be without the permission of the property owner.
Exclusive Use: The use must not be shared with the property owner or the general public.

Legal Requirements

Statutory Period: Varies by jurisdiction but typically lasts from 5 to 30 years.
Hostile Claim: The claim must be against the rights of the actual owner.
Improvement: Sometimes, making significant improvements can help substantiate the adverse possession.

Examples of Prescription

Fulson’s Case: As mentioned, Fulson owns a landlocked parcel and has been openly using a path on Grissom’s property to access a highway for years. Eventually, Fulson gains a prescriptive easement, allowing him to continue using the path.
Community Garden: A neighborhood converts an abandoned plot into a community garden and continuously uses it for over a decade. Eventually, they may claim an easement by prescription to keep using the land for the garden.
Driveway Access: A family has used part of a neighbor’s yard to access their driveway for decades. They could potentially secure an easement by prescription, preventing the neighbor from blocking access.

Frequently Asked Questions

Q: What is the difference between adverse possession and prescription?

A: Adverse possession typically refers to acquiring full ownership of a property, while prescription usually involves gaining specific use rights (e.g., an easement) rather than full title.

Q: Can any type of property be acquired through prescription?

A: Generally, prescription applies to easements, access routes, and specific use rights rather than entire properties.

Q: How does one prove prescriptive rights?

A: Documenting the continuous, open, and adverse nature of the use over the statutory period, often requiring witness testimony, historical documents, or photographic evidence.

Q: What happens if the owner disputes the prescriptive use?

A: Legal action may ensue where the claimant will need to prove that the statutory conditions for prescription are met.

Q: Can the prescriptive period be interrupted?

A: Yes, if the rightful owner reasserts control or grants permission for use during the prescriptive period, it may reset the statutory clock.

Adverse Possession: The process by which persons not the original owner gain title to someone else’s property under certain conditions.
Easement: A legal right to use another’s land for a specific limited purpose, often related to access.
Title: Legal term for evidence of ownership of property, usually in the form of a deed.
Quiet Title Action: A lawsuit filed to establish ownership of real property, typically used to clear up disputes or defects affecting the title.
Hostile Use: Use of property in a way that is contrary to the interest of the actual owner, without permission.

Online Resources

References

Rose, C. M. (1985). “The Modern Law of Easements and Licenses in Land.” University Casebook Series. Foundation Press.
Dukeminier, J., Krier, J. E., Alexander, G. S., Schill, M. H. (2006). “Property”. Seventh Edition. Aspen Publishers.
Callies, D. L., Freilich, R. H., & Roberts, T. E. (2012). “Cases and Materials on Land Use”. Sixth Edition. West Academic Publishing.

Suggested Books for Further Studies

“The Law of Easements and Licenses in Land” by JoAnn T. Sandberg: Comprehensive guide detailing legal principles regarding easements and licenses.
“Property” by Jesse Dukeminier and James E. Krier: Classic textbook covering various aspects of property law, including prescriptive rights.
“Real Estate Law” by Marianne M. Jennings: Covers numerous legal issues in the real estate field, ideal for further understanding prescription.

Real Estate Basics: Prescription Fundamentals Quiz

### What is not typically required for acquiring an easement by prescription? - [ ] Continuous use over a statutory period - [ ] Open and notorious use - [ ] Permission from the property owner - [x] Use without the property owner's permission > **Explanation:** To acquire an easement by prescription, the use must be continuous, open, notorious, and without permission from the property owner. ### What is often acquired through prescription? - [x] An easement - [ ] Ownership of personal belongings - [ ] A rental agreement - [ ] A mortgage > **Explanation:** Prescription usually pertains to acquiring an easement—such as a right of way—instead of outright ownership. ### How might continuous use be interrupted, affecting a prescription claim? - [ ] By enhancing the disputed property - [ ] By survey of the property lines - [ ] By the original owner explicitly reassuming control - [ ] By a neighbor’s complaint > **Explanation:** Continuous use can be interrupted if the original owner explicitly reassumes control, thereby breaking the chain of use needed for prescription. ### What is the common statutory period for prescription in various jurisdictions? - [ ] 1-2 years - [x] 5-30 years - [ ] 50-100 years - [ ] 100 years > **Explanation:** The statutory period for prescription commonly ranges from 5 to 30 years, depending on the jurisdiction. ### Can permission from the property owner affect a prescriptive claim? - [x] Yes, it invalidates the hostile use requirement - [ ] No, it solidifies the claim further - [ ] Yes, it accelerates the claim process - [ ] No, permission is irrelevant > **Explanation:** If the property owner grants permission, it invalidates the hostile use requirement necessary for a prescriptive claim. ### What term describes use that is visible and obvious to anyone, including the property owner? - [x] Open and notorious - [ ] Illicit - [ ] Partial and covert - [ ] Conditional > **Explanation:** The term "open and notorious" describes use that is visible and obvious to anyone, which is one of the criteria for establishing prescriptive rights. ### Which term is more relevant to the outright ownership of property? - [ ] Prescription - [x] Adverse possession - [ ] Leasehold estate - [ ] Easement by necessity > **Explanation:** Adverse possession typically pertains to the outright ownership of property, whereas prescription deals with usage rights like easements. ### What can significant improvements to a property by a claimant indicate? - [ ] Enhancement of aesthetic value - [ ] Nullification of prescriptive rights - [x] Strengthening of adverse possession claim - [ ] Recent purchase of property > **Explanation:** Significant improvements by a claimant often strengthen an adverse possession claim, demonstrating intention and use. ### What type of easement might someone acquire through prescription? - [x] A right of way - [ ] A limited liability partnership - [ ] A development lease - [ ] A property grant > **Explanation:** Through prescription, someone might acquire an easement like a right of way to traverse another's property. ### For prescription to be valid, how must use be shown? - [ ] Sporadically and infrequently - [ ] Secretly and privately - [x] Continuously and without permission - [ ] With the least possible disturbance > **Explanation:** For prescription to be valid, the use must be continuous and without permission, as these criteria help substantiate the claim.