If They Use It You May Lose It

David Allen b&w

David L. Allen
Partner, Jaburg & Wilk


As a general rule, if somebody owns something, whether it is as small as a cell phone or as big as ten-acre parcel of land, no one else may use it without the owner’s consent. There is, however, a notable exception to such rule found in the legal concept of prescriptive easements.

While there are various types of prescriptive easement claims, such claims oftentimes arise in the context of somebody using property that belongs to somebody else to access their own property. Even though most property owners are able to access their property by means of public rights-of-way, it is not unusual, especially in rural areas, for such access to exist by way of an easement running over land owned by others. Access easements can either be “express,” when they are created by an easement deed or other written document, by “necessity,” where the user is otherwise “landlocked,” or by prescription.

To establish an easement by prescription in Arizona, the party claiming such easement must file a lawsuit, and prove by “clear and convincing evidence,” which is a more stringent standard than the “a preponderance of the evidence” standard applicable to most civil claims, each of the following elements: (1) that the land over which the easement is being claimed has been actually and visibly used, (2) for a continuous period of at least ten years, (3) under a claim of right, that is (4) hostile to the title of the owner of the affected land. The mere use of another’s land, without satisfying each of these elements, is insufficient to prevail on a prescriptive easement claim.

The requirement of “actual and visible use” is self-explanatory, and is clearly necessary to put the affected landowner on actual “notice” that their property might be subject to a prescriptive easement claim. The requirement of “continuous use,” mandates that the use has been ongoing for at least ten years prior to the time that the lawsuit was filed; however, it is not necessary that the party making the prescriptive easement claim has themselves been the “user” for the entire ten years, as the use by a prior user may be “tacked” onto the use of the claiming party to satisfy the ten-year requirement. The “claim of right” requirement simply means that the user used the easement in such a manner as to give notice to the owner that the user is claiming the “right” to use the property, regardless of whether the user may be under a mistaken belief that it is a public access. The “hostility” element does require that they user exhibit anger, or other such “hostile” emotions, but rather requires that the use is taking place notwithstanding the fact that the property is owned by another.

The primary defense to a claim of prescriptive easement is that he owner of the property has given their “permission” for such use to take place. Permission may be either express or implied by the conduct of the parties; however, it is always preferable to have something in writing to prove express permission. Once the party claiming the easement has proven all of the necessary elements, it becomes the burden of the affected property owner to prove the existence of permission. A property owner who wants to avoid having their property burdened with a prescriptive easement is thus well advised to either put an end to the use, or alternatively, to clearly document that the ongoing use is permissive.


David Allen is a real estate attorney at the Phoenix law firm of Jaburg Wilk. David has been representing clients in both transactional and litigation real estate and business related matters for over 30 years. He is licensed as an attorney in both Arizona and California, and is also a licensed Arizona real estate broker. David can be reached at dla@jaburgwilk.com or at 602-248-1082.