A prescriptive easement—also known as an easement by prescription or an adverse easement—is an easement (right to use property) created by a use of property (the servient estate) that is open, continuous, and adverse to the owner of the property (the servient estate).
To satisfy the requirement that the use be continuous, the use must take place over a required period of time—which may be specified in a state’s court opinions (common law or case law) or in its statutes if the state legislature has written the law regarding easements into statutes or code. If the state legislature has written a law in statutes or codes the law is said to be codified.
In Texas, a prescriptive easement is acquired when an individual uses another's property openly, continuously, and adversely for a period of at least 10 years. This concept is codified in the Texas Civil Practice & Remedies Code, Section 16.026, which outlines the requirements for adverse possession. While adverse possession typically refers to acquiring title to land, the principles for establishing a prescriptive easement are similar. The use must be such that it gives the true owner a reasonable opportunity to notice and challenge it. The user must not have the owner's permission for the use, and it must be without interruption for the statutory period. If these conditions are met, the user may be able to claim a prescriptive easement. It is important to note that the specifics of each situation can be complex, and an attorney can provide guidance on the likelihood of establishing a prescriptive easement in a particular case.
