ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Your Property Rights

How are easements created?

An easement or profit may be created by a deed, by a will, or by implication--such as if a previous owner divided a single lot in half and the only access to the back lot is through the front one. Or, if a neighbor has been using your property in some way for a long time, such as by driving on your private road, he or she may be able to claim a prescriptive easement to continue doing so whether you give permission or not.

Courts are willing to grant prescriptive easements when the neighbor has been engaging in the activity in question for a given period of years and the property owner has not physically stopped him or her, such as by erecting a locked gate. (The period varies by state, but is usually between five and twenty years.) Oddly, one of the requirements for gaining a prescriptive easement is the property owner's objections--such as the owner telling a person over and over for years not to drive on the road, without putting up a gate. The reasoning seems to be that if an owner gives someone permission to do something, that person cannot claim it as a right.