The Differences Between Adverse Possession and Prescriptive Easements

Adverse possession and prescriptive easements are two distinct legal doctrines, but Arizona courts often use similar legal standards for both situations. The main difference between these two types of property rights is that while adverse possession results in ownership of the land in question, a prescriptive easement only grants the right to use the land for a specific purpose—the original land owner retains title to the land in question.

For example, in Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755, 1992 Ariz. App. LEXIS 330, 129 Ariz. Adv. Rep. 59 (Ariz. Ct. App. 1992), Inch was granted an easement on an area of land that belonged to their neighbor. Inch had laid gravel and parked cars on the land for a continuous period that exceeded the statutory requirements. However, the Arizona Court of Appeals refused to permit Inch to construct a block wall on the land in question because that would have exceeded the scope of the prescriptive easement. Had Inch been granted title to the land under a claim of adverse possession, he would have had the right to build the wall.

The Court in Inch also noted that while the legal requirements for an adverse possession claim and a prescriptive easement claim were similar, the proof required for the two claims was different. A claim for prescriptive easement must also show that the required elements—open, visible, hostile, and continuous use for the statutory period—as they apply to the scope of the easement. A prescriptive easement claim may succeed based on evidence that would not support an adverse possession claim because each element must only be proven as it relates to a specific, limited use.

Another important distinction between these doctrines is that while adverse possession requires exclusive use of the property, a prescriptive easement does not. Ammer v. Arizona Water Co., 169 Ariz. 205, 818 P.2d 190, 1991 Ariz. App. LEXIS 211, 94 Ariz. Adv. Rep. 9 (Ariz. Ct. App. 1991). Other people, including the property owner, may also use the land at the same time as the person claiming the prescriptive easement.

Chernoff Law handles real estate matters, including adverse possession and prescriptive easement claims. Call us at 480-719-7307 to discuss your case with one of our real estate lawyers.

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