Unrecorded Rights in Your Property: How to Avoid Potential Adverse Possession and Prescriptive Easement Claims
By Matthew M. McKeon, Esquire-
The day has finally come: you’re attending the closing on your new property. You have a title insurance policy commitment, and the title report came back clean – except for a standard utility easement from the electric company. However, there are some types of interests in property that will not show up in a title report because they were never recorded. Prospective buyers and current owners of property should understand how to protect against a third party claiming an unrecorded interest in the property.
Adverse Possession and Prescriptive Easements
Adverse possession is a means by which a third party can obtain a legal right to all or part of a property despite the property having a different owner of record. One who claims a right to property by adverse possession must show that they have possessed the property in a manner that is “actual, continuous, exclusive, visible, notorious, distinct and hostile” possession of the land for 21 years. These archaic sounding requirements essentially mean that the third party must have continuously possessed the property to the general exclusion of others for 21 or more years, and must have done so in a manner that would place a reasonable record owner on notice.
A prescriptive easement is an easement across the property of a record owner that is obtained in the same manner as adverse possession. In other words, a third party who asserts a prescriptive easement across a record owner’s property must show that their use of the easement meets all the same requirements to establish an enforceable right to the easement.
Assessing Whether the Property Has Unrecorded Interests
Prospective buyers should ask the current owner of the property whether any third parties possess or claim interests in the property, including interests such as easement rights, or rights to use, or travel over, any part of the property.
Prospective buyers should also walk the entire perimeter of the property and understand how it relates to neighboring properties. Has a neighbor mowed grass or otherwise landscaped over the property line? Are there any structures, such as sheds, which are not used by the current owner or which are located on or over the property line? These could all be signs of adverse possession. Are there any driveway, tire tracks, or footpaths that appear to cross the property line? These may indicate unrecorded easements across the property.
Possible unrecorded interests can be difficult to detect, and prospective buyers and current owners alike should consult with a land use attorney if they are concerned that a third party may have an unrecorded interest in the property.
Where a Third Party Asserts an Unrecorded Interest in the Property
What if a third party does assert that they have an unrecorded interest in the property? Luckily for record owners, it can be very difficult for third parties to successfully prove all of the elements necessary to establish adverse possession or a prescriptive easement. However, even unsuccessful legal claims by parties claiming an unrecorded interest can still be expensive and frustrating for record owners and can impede the sale of the property until the issue is resolved. A land use attorney can help a record owner decide how best to proceed based on the record owner’s specific circumstances.
Matthew M. McKeon is an attorney in MacElree Harvey’s West Chester office and a member of the firm’s Land Use Practice Group. Matt primarily focuses his practice on land use, zoning, and litigation-related matters.
To learn more about Matt’s practice or to schedule a consultation, call (610) 840-0225 or email [email protected].