Not On My Land? Clarifying the Elements For a Prescriptive Easement
Posted on Dec 20, 2016 by BY TURNER PADGET LITIGATION TEAM
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.continue reading