Easement by Prescription as a Cause of Action in New York

In New York, an easement by prescription allows someone to gain the legal right to use another person’s property after a certain period of continuous and noticeable use. Unlike adverse possession, which can lead to ownership, a prescriptive easement only grants the right to use the land for a specific purpose, such as accessing a driveway or path. To establish this right, the person seeking the easement must prove four specific elements.

Adverse Use

The use of the property must be adverse, meaning it occurs without the permission of the property owner. This does not require hostility in the traditional sense but must show that the person using the property did so as if they had the right, regardless of the owner’s objections or silence. If the use was done with the owner’s consent, it cannot lead to a prescriptive easement.

Open and Notorious Use

The use must be obvious and visible so that the property owner has the opportunity to see it and take legal action if they disagree. Secret or hidden uses do not satisfy this requirement. The idea is to ensure that the true owner had a fair chance to stop the use if they did not agree with it. For example, if someone regularly drives over a private path on another person’s land in broad daylight, that use is considered open and notorious.

Continuous and Uninterrupted Use

The use of the land must be continuous and uninterrupted for the entire statutory period, which is ten years in New York. This does not mean daily use but rather regular use consistent with the type of easement claimed. If the use stops for an extended period or becomes inconsistent, the clock resets, and the claim may be lost.

The Prescriptive Period

In New York, the prescriptive period is ten years. The person claiming the easement must prove that they have met all the above elements for at least a full decade. If the use started only a few years ago or was interrupted before the ten years were complete, a prescriptive easement will not be recognized.

Conclusion

An easement by prescription can grant someone the legal right to use a portion of another person’s land, but only under strict conditions. The use must be adverse, open and notorious, continuous, and last for at least ten years. Courts look closely at these elements to avoid rewarding casual or accidental uses. If proven, however, the person may gain a legal right to continue using the land, even without ever having a formal agreement with the owner.

Find the Law

“The necessary elements to prove a prescriptive easement are adverse, open and notorious, continuous and uninterrupted for the prescriptive period. (See, Di Leo v. Pecksto Holding Corp., 304 NY 505, 512; Rozenberg v. Bacigalupo, 18 AD3d 854; see also, Gravelle v. Dunster, 2 AD3d 964.)” ENG v. SHIMON, 2006 N.Y. Slip Op. 51221 (N.Y. Sup. Ct. 2006).