Prescriptive easement
A prescriptive easement is a right to use another person's land that arises from long, adverse use rather than from a deed or grant. In Virginia the use must continue for at least 20 years, and the person claiming the right must prove it by clear and convincing evidence.
No deed, a worn track, and twenty years of use
A prescriptive easement starts with use and no paper. Someone drives a track across a neighbor's field to reach his own land, and no deed, grant or written agreement gives him the right to do it.
Among the ways an easement can arise in Virginia, prescription is the one measured in years.
Use begins without a grant
The use crosses land the user does not own, with no deed or grant behind it.
The use has a required character
The Supreme Court of Virginia lists several elements the use must meet, starting with use that is adverse and under a claim of right.
Twenty years pass
That use has to continue for a period of at least 20 years.
A court declares the right
The claimant must present clear and convincing evidence to establish the easement, and only a court declares that it exists.
Two clocks in this area of law are easy to swap, and they must not be. Adverse possession, which can give title to the land itself, runs on a 15-year period under Va. Code 8.01-236. A prescriptive easement, which gives only a right to use, needs at least 20 years. The land question has its own entry under what adverse possession is and how long it takes.
What a claimant has to show element by element, and what defeats a claim, is worked through in what a prescriptive easement is and what it takes to prove one.
What the word means on an old road, and what it does not
On road plans the term has a particular home, and the state's own survey guidance names it.
Under the heading for roads with no recorded fee simple right of way, VDOT's survey manual says: "These roads are often described as prescriptive right of way or prescriptive easements."
A road that became public through work by highway officials and use by the public falls under a different statute, Va. Code 33.2-105. That is a public highway question, not a private prescriptive easement.
The same two words carry a narrower meaning in one statute. Va. Code 55.1-306.1, on utility easements and the expansion of broadband, gives a utility's or communications provider's prescriptive easement its own definition for that section alone. It is not the rule for a neighbor's driveway, and it belongs with what a utility easement is. Every other kind of easement, and how each is created, read, moved and enforced, is covered in easements explained.
Is there an old road across your land with no recorded right of way?
Tell us where the road runs and what the deed says about it, and Lowell will explain how an unrecorded road bears on a sale and what to put in front of an attorney. No cost, no obligation.
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Questions about this term
Will a title search turn up a prescriptive easement?
Not necessarily, because no deed or grant creates one. VDOT's survey guidance does not rely on the paper record alone when it researches easements: it calls for visible field evidence as well as a 100-year records search on each parcel. Whether a use seen on the ground has ripened into a right is a question for an attorney.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Nelson v. Davis (2001): the elements and burden of proof for a prescriptive easement Supreme Court of Virginia
- Va. Code 8.01-236: the fifteen-year limitation on actions to recover land Code of Virginia
- VDOT Survey Manual, Chapter 4: prescriptive right of way and easement research Virginia Department of Transportation
- Va. Code 33.2-105: public highways established by work and use, and the presumed width Code of Virginia
- Title 55.1, Chapter 3, Article 1, including Va. Code 55.1-306.1: utility easements and the expansion of broadband Code of Virginia