How to Establish “Continuous Use” for a Prescriptive Easement

In order to establish a prescriptive easement in Arizona, a person must establish that the disputed land was actually and visibly used for a period of at least ten years under a claim of right hostile to the land owner. A similar ten-year requirement exists for an adverse possession claim, with a shorter time period applicable to situations where the adverse possessor has paid taxes on the land and has color of title.

The continuous use requirement has several nuances that could defeat or support a finding of a prescriptive easement. The case of Ammer v. Arizona Water Co., 169 Ariz. 205, 818 P.2d 190, (App. 1991) examines some of these issues. The Ammers leased a lot and built a general store on it. They later bought the lot and paved a parking lot for the store. The parking lot encompassed land owned by Arizona Water Co. (AWC).

Nine years after the Ammers bought the land, AWC informed them that the parking lot was encroaching upon their land. The Ammers filed a complaint after AWC erected a fence on the portion of the parking lot that encompassed its property.

The court first noted that the use of the disputed property need not be carried out by the same person for the entire ten-year period under the doctrine of tacking, or combining the possession of successive owners. Tacking would be permitted when “privity of estate” existed between the successive users, which can be shown by a conveyance, agreement, or understanding that refers the successive adverse use to the original adverse use and is accompanied by a transfer of the use.

A landlord may tack a period of his tenant’s adverse use to periods of his own use if there is privity of estate with regard to the adverse use. There must be some sort of understanding that the adverse use is being transferred in order for the tacking to be permitted. It is not required that the person using the land adversely is aware that it belongs to another.

The court also noted that while exclusive use of land is required for an adverse possession claim, it is not required for a prescriptive easement claim. A person may establish a prescriptive right even when other people, including the landowner, use the property for a similar purpose. Even if a person has not personally used the disputed land for ten years, the doctrine of tacking may still support a finding of a prescriptive easement or adverse possession.

Claims of proscriptive easements and adverse possession can be complex and often require assistance from counsel.  Chernoff Law handles real estate litigation matters throughout Arizona. Contact us by calling 480-719-7307 to discuss your real estate matters.