Question 1

What is a prescriptive easement in Florida?

Accepted Answer

A prescriptive easement is an easement acquired through long-term, continuous use of another’s property without permission. In Florida: the elements are: actual use (the claimant actually used the property), open and notorious (the use was visible and obvious to the property owner), continuous and uninterrupted (the use was continuous for the statutory period), adverse and under claim of right (the use was without the owner’s permission and under a claim that the claimant had the right to use the property), and for the statutory period (20 years in Florida; Section 95.12).

Question 2

How does a prescriptive easement differ from adverse possession in Florida?

Accepted Answer

Distinction: prescriptive easement: the claimant acquires the right to USE the property (for a specific purpose, such as: a driveway, a path, or utility access), the property owner retains ownership, and the easement is limited to the specific use. Adverse possession: the claimant acquires OWNERSHIP of the property (title), the property owner loses all rights, and the claimant must also: enclose the property with a fence or cultivate it (Section 95.18), and pay property taxes for at least 7 continuous years. Prescriptive easements do not require: payment of taxes, enclosure, or cultivation.

Question 3

How can a Florida property owner prevent a prescriptive easement?

Accepted Answer

Prevention: post "no trespassing" signs (putting the user on notice that the use is not permitted), grant written permission (if the owner gives permission, the use is not adverse; a license or written consent defeats the prescriptive claim), block access periodically (interrupting the continuous use; even a brief interruption can reset the 20-year clock), file a lawsuit (the owner can file a trespass action or seek an injunction to stop the unauthorized use), and record a notice (the owner can record a notice in the official records objecting to the use). The key: any action that shows the owner does not consent to the use will defeat a prescriptive claim.

Prescription and Easement

Prescriptive Easements in Florida

Elements

vs. Adverse Possession

Prevention

Related Terms

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