Your family has been hiking to your mountain cottage over neighbor’s land for decades. Do the neighbors have the right to tell you to stop? Depends whether you have a prescriptive easement …
An issue that comes up in real estate law fairly often is whether an easement exists. A prescriptive easement is a legal principle giving a nonowner the right to use a portion of someone else’s land. Easement issues often comes up when people use a path or driveway that crosses a piece of land the users do not own.
Most real estate matters are governed by state law. In New Mexico, the state Supreme Court issued the leading case on prescriptive easements in 2002. In Algermissen v. Sutin, the court streamlined and clarified the elements needed to establish a prescriptive easement and state courts have followed this case ever since in determining whether prescriptive easements exist.
The case involved a path used by the public for decades over parcels of private land as an access route to Rio Grande State Park. The route began as a private easement for the landowners, but over the years was used by people not invited by or associated with the landowners. When one of the landowners put up a gate to block access because they were having trouble selling the land because of a possible prescriptive easement, members of the public sued all the landowners involved, claiming a public, prescriptive easement.
The trial court found the evidence did not support the easement and the Supreme Court agreed.
The elements that must be present for an easement by prescription are:
- A use of land that is adverse, meaning in opposing interest to the owner and without their consent, although permission may be implied by owner behavior. If all elements of the easement are met and there has not been express permission from the owner, adversity may be presumed.
- The use is also open or notorious. Notorious means that the owner knew or should have known of the use because it was obvious with “reasonable diligence” or “widely known in the neighborhood.” Open means a use that was “visible or apparent.”
- The use was continuous without interruption for 10 years. Continuous use means at the “same consistency” an owner of the easement would make, “so long as that use is reasonably frequent.” Any behavior or action by the landowner that interrupts the nonowner’s use defeats this element.
In Algermissen, the Supreme Court agreed with the trial court that there was evidence that adverse use did not continue for 10 years because during some of that time the use was permissive; and that a finding was rational that use may not have been open and notorious since it was hard to distinguish members of the public from people invited access by neighbors.
Easement cases can be complex and require historical research and investigation. A lawyer can answer questions about your easement issue, whether you are trying to establish one or are opposing one over your property.
The attorneys at The Turner Law Firm, LLC, in Albuquerque represent individual and commercial clients on issues related to easements across the state.