Prescriptive Easement and Adverse Possession…
One is about easements and the other is about ownership, both require court action to be implemented.
adverse possession. (18c) 1. The enjoyment of real property with a claim to right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open, and notorious. (example omitted) 2. The doctrine by which title to real property is acquired as a result of such use of enjoyment over a specified period of time. (Black’s Law Dictionary, pg 62)
What this means is that a person is claiming ownership to a portion of land that someone else has claim to. This claim must be open, the claimant cannot conceal their allegation of ownership. It must be exclusive, the property must appear to be used solely by the claimant. It must be continuous, the claimant cannot randomly care for a section of land and then say it is theirs. It must be notorious, any onlooker could reasonably assume the property in question belongs to the claimant. Finely, it must be hostile. This is the case of Joe occupying Bob’s land and Bob sues Joe to evict him from it. This is hostile. If Bob concedes to Joe’s occupation, there is no hostility (per se) and adverse possession cannot be employed.
When acquiring land via adverse possession, assuming all of the aforementioned stipulations are met, time becomes a factor. There is one governing factor in Tennessee, color of title.
color of title. (18c) A written instrument or other evidence that appears to establish title but does not in fact do so. – Also termed apparent title. (Black’s Law Dictionary, pg 302)
If you have some form of documentation or evidence stating you own the land but the true owner has senior rights, you have color of title.
The timing for adverse possession in Tennessee is either 7 years or 20 years. 7 years if you have color of title and 20 if you don’t. This means that you have to occupy the property continuously for the prescribed length of time to even consider an adverse claim.
prescriptive easement. (1838) An easement created from an open, adverse, and continuous use over a statutory period. – Also termed easement by prescription; adverse easement. (Black’s Law Dictionary, pg 587)
Prescriptive easements (or locally referred to as prescriptive rights) are those that a court creates when existing access to a parcel of land is prevented by the landowner as no written easement can be found. Essentially, if I have a drive that crosses another’s property and I don’t have a deed granting me usage and the neighbor cuts me off from using that drive, I might have a case for a prescriptive easement. This comes down to time.
As the nature of a prescriptive easement is such that there is no color of title, the prescribed length of time in Tennessee is 20 years. A question posed by one surveyor to a group of surveyors was does this occupation have to be by a single person? As the average length of home ownership is somewhere less than 15 years (HousingEconomics.com), can the average homeowner ever meet these guidelines. Did a house that had several occupants over the course of the prescribed time still meet the obligation of 20 years?
The consensus within the group was that the house in question (not the homeowner) was the entity that utilized the drive and therefore met the statutory time requirements. This, I am sure, is a situation that will require the judge’s deeper review.
In any situation dealing with land disputes, if the parties cannot agree, court action is needed. Call your surveyor, establish the facts, then follow up with your attorney.