The old Woody Guthrie song emphatically proclaiming “this land is your land, this land is my land” could well have its roots in the concept of a prescriptive easement in Pennsylvania. As recently explained in a Bucks County Court of Common Pleas case, Slice & Hook Enterprise v. McGonigal, 87 Bucks Co. L. Rep. 321, 329 (2014), a prescriptive easement exists when one establishes a right to use another’s land for some purpose, through “open, notorious, continuous, uninterrupted, adverse and hostile use” (although not inconsistent with the landowner’s use of the property), for twenty-one (21) years.
If that sounds an awful lot like the standards for adverse possession of real estate to you, you’re not hearing things. Indeed, the only real difference between classic adverse possession and a prescriptive easement is that adverse possession, if successful, gets one fee simple title to the land in question. On the other hand, a prescriptive easement is merely a right, less than absolute fee simple title, to use land which is owned by someone else.
Prescriptive easements can be extremely difficult to prove. However, for the owner of a landlocked property who finds that for the past thirty years he has had to drive across his neighbor’s real estate (without the neighbor’s agreement) to get to the highway to go to work, a prescriptive easement may be necessary.
At Stark & Stark, we can initiate and proceed with the litigation necessary to request the establishment of a prescriptive easement, assuming the proposed use of land meets the criteria referenced above.