Ted H.S. Hong attorney at law, lllc

What is a prescriptive easement?

| Jul 19, 2021 | Real Estate Law |

Although there are limitations, property owners in Hawaii can generally use their real estate as they wish. This includes allowing another person access or use of that property. A prescriptive easement is often a crucial aspect of this type of arrangement, although these types of easements generally start because of a nonowner’s use of another’s land as if it were his or her own.

Prescriptive easements

Prescriptive easements often arise after a property owner realizes that his or her property is being used by another person. One of the most common scenarios is when a neighbor builds a fence in the incorrect location. However, prescriptive easements are sometimes necessary when one neighbor needs to use part of another neighbor’s property to access his or her own land.

There are several requirements that must be met before this use can be considered a prescriptive easement, though. For starters, the way in which the nonlandowner is using it should be open and obvious. The usage must also involve the following:

  • Actual
  • Hostile
  • Exclusive and continuous

These requirements can be understandably confusing and largely refer to legal concepts related to land usage. For example, if the use of another’s land is hostile it does not mean that the nonlandowner is being threatening or adversarial. This requirement is instead met by the nonowner using the land either with or without the owner’s knowledge, and on purpose or unintentionally.

It can be upsetting to learn that a neighbor is using part of one’s property for his or her own purposes. However, it is possible that the neighbor’s actions might fit the description of prescriptive easement. Property owners who are not sure whether they can take action regarding another person’s use of their land should be sure to seek guidance from an attorney who is knowledgeable in Hawaii real estate law.