Rights to use someone else's real estate without the voluntary transfer of the right from the true owner come in two flavors: Adverse Possession and Prescriptive Easements. Although similar, there are distinct differences, and courts approach them much differently.
Adverse possession involves the involuntary transfer of property from the true owner to the adverse possessor provided the adverse possessor can show that for ten consecutive years the true owner's property had been possessed in a manner that was: (1) open and notorious; (2) actual and uninterrupted, (3) exclusive, and (4) hostile.
Please note that each of these elements must be met and there are certain requirements that must be shown to establish each of these elements.
If the elements can be established, then the portion of the possessed property will have been adverse possessed and title will be in the claimant; they will own the possessed property.
A prescriptive easement, on the other hand, arises when a claimant has used someone elses's property for a specific purpose. These can often be roadways, driveways or walkways.
For a court to find a prescriptive easement, the claimant must show (1) that the claimant used the land in an “open” and “notorious” manner, (2) the use was “continuous” or “uninterrupted,” (3) the use occurred over a “uniform route,” (4) the use was “adverse” to the landowner, and (5) the use occurred “with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.”
The distinction between the two is critical and has far reaching implications. Adverse possession will result in new boundary lines. A prescriptive easement, on the other hand, will leave the original boundaries in place and the possessor's use will be limited to the activity that gave rise to the prescriptive easement.
The distinction is also important be because courts take different approaches when considering the evidence and whether the specific elements are met.
When considering a claim of adverse possession, there is a presumption that the true owner has possession, and the party claiming adverse possession thus bears the burden of proving the necessary elements by a preponderance of the evidence.
If the claim involves a prescriptive easement, in addition to being required to establish the elements by a preponderance of the evidence, the claimant must overcome a presumption that the use of the property was permissive. This is significant in that a permissive use cannot support a claim for adverse possession or a prescriptive easement. If the claimant was there with the knowledge and permission of the true owner, the true owner's property cannot be lost.
How does someone claiming a prescriptive easement overcome the presumption of permission? That is a difficult question that can only be resolved on a case by case basis.