Easement by Prescription

What Is an Easement by Prescription?

An easement by prescription is a right to use another person's property that is acquired not by agreement but by long-term, unauthorized use. It is similar to adverse possession, but instead of claiming ownership, the claimant acquires only a right to use the land for a specific purpose (typically access).

Florida Prescriptive Easement Requirements

To establish a prescriptive easement in Florida, the claimant must prove:

1. Actual use — The claimant physically used the property (drove across it, walked through it, etc.).
2. Open and notorious — The use was visible and obvious, not hidden or secretive.
3. Continuous — The use was uninterrupted for the full 20-year prescriptive period. Seasonal or periodic use may qualify if it is consistent with the nature of the use.
4. Adverse/hostile — The use was without the property owner's permission. If the owner gave consent (even informal verbal consent), the claim fails because the use was permissive, not adverse.

Florida's prescriptive period of 20 years is significantly longer than the 7-year period for adverse possession, making prescriptive easement claims harder to establish.

Permissive Use Defeats the Claim

The most common defense to a prescriptive easement claim is that the use was permissive. If the landowner can show they gave the user permission (even informal, unwritten permission), the use was not hostile and the claim fails. Many Florida landowners protect themselves by posting signs or sending letters expressly granting revocable permission for use, which prevents the use from ever becoming prescriptive.

Formalizing a Prescriptive Easement

A prescriptive easement is established through a quiet title action or declaratory judgment action in circuit court. The court order establishes the easement, which is then recorded in the public records.

Related Terms

• Adverse Possession — Similar doctrine but claims ownership, not just use
• Easement Appurtenant — Created by agreement
• Easement by Necessity — Created by landlocked status
• Quiet Title Action — Used to formalize the claim

Barnes Walker Prescriptive Easement Services

Barnes Walker's litigation attorneys handle prescriptive easement claims and defenses in Manatee and Sarasota counties. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC