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Not On My Land? Clarifying the Elements For a Prescriptive Easement

Imagine finding that a neighbor, or a company, or even the public has acquired the right to use part of your property without compensating you. A recent ruling in South Carolina sets new case law and provides important guidance for issuers of title insurance, parties impacted by property litigation and anyone who may be seeking advice about the validity of an easement, which is a right to cross or use someone else's land for a specified purpose.

In Simmons v. Berkeley Electric – a property dispute over whether utility companies had the right to use a individual's land for water and power lines – the South Carolina Supreme Court held that the Court of Appeals erred in recognizing two methods, adverse use and claim of right, of proving the third element of a prescriptive easement. (A prescriptive easement is earned by regular use; it is not something that is purchased, negotiated or granted, and the user does not gain title to the land.)

This ruling concluded that when analyzing the third element of a prescriptive easement, South Carolina courts should apply a new test for adverse use, which is the practice of using property without the authorization of the owner.

Required Layers of Proof

The South Carolina Supreme Court acknowledged that its prior decisions set the stage for the lower court's error, and used its ruling to clarify the third element of a prescriptive easement. Dating back to 1823, South Carolina courts had made rulings indicating a claimant had to prove adverse use or claim of right, but not both. This new ruling clarifies that a claimant has to prove both adverse use and claim of right.

Three elements are required in South Carolina to establish a prescriptive easement by clear and convincing evidence:

  • The continued and uninterrupted use or enjoyment of the right for a period of 20 years.
  • The identity of the thing enjoyed (for example, a power line or a water line).
  • The use was adverse under claim of right.

In the Simmons ruling, the court wrote: “..we hold adverse use and claim of right cannot exist as separate methods of proving the third element of a prescriptive easement.” In other words, no single pillar among these elements will suffice; a claimant has to prove all three elements to demonstrate that they had the right to use the property, based on the totality of circumstances.

Lessons Learned and Future Impact

This new legal precedent is relevant to any party who has a stake in a property dispute. Important takeaways include:

  • The determination of the existence of any easement is always a question of fact.
  • Evidence of permissive use defeats the establishment of permissive use.
  • The “open and notorious” elements of a prescriptive easement are now better outlined.

The test established by the Simmons ruling more clearly defines a prescriptive easement, which should simplify future litigation. If you are involved in a property dispute, a key step is to consult an experienced attorney who can review your deed, survey, and other relevant documents to determine your options. Being informed about the significance of this ruling will guide and benefit all parties.  

Kristen N. Nichols is an attorney at Turner Padget, where she serves clients in the areas of landlord/tenant law, bankruptcy, commercial law and litigation, foreclosure, debtor/creditor law, and creditors' rights. She is a certified mediator and serves as a guest speaker to classes at the Charleston School of Law. She may be reached at (843) 576-2836 or by email at knichols@turnerpadget.com.

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