Usually, the right to make use of another’s land, such as for access, for parking, or for the installation and maintenance of a structure or utility line, is the result of a grant (either express or implied) by the owner to the person seeking such right. In the case of an express grant, the parties agree to the terms of the grant, referred to generally as an easement, the scope of the use or uses allowed, and the consideration or compensation payable, if any, to the owner in exchange for the benefit of such grant. Under certain circumstances, however, the law recognizes that a person may obtain an easement without an express or implied agreement, a so-called easement by prescription.
To establish a prescriptive easement, a person must prove open, notorious, adverse, and continuous or uninterrupted use of land for a period of not less than twenty years. This is less than the standard to establish a claim of title by adverse possession, which requires that the use be exclusive. Failure to provide sufficient evidence on any of the required elements defeats the entire prescriptive easement claim.
Open and notorious use does not mean that the landowner must be shown to have actual knowledge of the use; it is sufficient if the use is made without attempted concealment and is conspicuous enough to be noticed, directly or indirectly, by a landowner maintaining a reasonable degree of supervision over his or her property. For use to be adverse, it must be without express or implied permission, but such permission to defeat the claim must be something more than quiet acquiescence. An unexplained use of an easement for twenty years creates a presumption of adversity. The landowner can overcome the presumption by evidence that explains the use or shows control over the use. Seasonal use or periodic use may be deemed continuous, provided that it is done consistently. The 20-year period of use can be satisfied by the person claiming the prescriptive easement and such person’s predecessor in title, provided that the use is the same over that period.
A recent case decided by the Massachusetts Land Court reveals the consequences of failing to mind your neighbor’s use of your land. In that case (Despard v. Fabrocini, No. 13 MISC 478602(KFS), decision dated March 7, 2015), the Despards, incorrectly thinking that their parcel extended farther back than it actually did, started to clear the back area of overgrown brush and trees shortly after purchasing their parcel. That area was owned by their neighbor, the Fabrocinis. Eventually, the Despards created a grassed lawn and installed within the area two horseshoe pits, a bocce court, a wooden bench, and a gazebo. The Despards maintained the area and used it for playing horseshoes and bocce ball, hosting in the summer a horseshoe league weekly and about four substantial parties, including a Fourth of July party, and, in the winter, occasional sledding and playing in the snow. There was no evidence that the Despards ever sought permission from the Fabrocinis to use the area, nor was there evidence that the Fabrocinis expressly granted permission to the Despards for such use.
In an action brought by the Despards to establish their right to continue such use, the Court found that because the Fabrocinis failed to present evidence of permission granted to the Despards, the Despards use of the area was unexplained and is presumed to be adverse. The Court also found that such use was open, notorious, and continuous for a period greater than twenty years. Consequently, the Court ruled that the Despards held a prescriptive easement over the area for social and recreational use consistent with their past level and type of use, specifically, the right to maintain the lawn and the structures they installed within the area, the right to use the structures and the area for recreational use in the summer, and the right to host a Fourth of July party each year.
