does a prescriptive easement have to be filed with county clerk to be valid?

Question

thanks!

Answer 1

I don't think so. This type of easement is one that is created by use of the land over time. There is no formal record of the easement. I believe it is created by the court when you litigate.

For example, if you crossed your neighbor's land to reach your house every day for 5 years, and then one day he tried to stop you, a judge could find that your continued and open use of the land for a long time created a prescriptive easement in your favor.

The duration requirement varies by state.

See an attorney who specializes in property law.

Answer 2

The first answer is correct. Presecriptive easements arise as a matter of equitable estoppel, similar to laches. They exist because it would be unfair to terminate them, after a given period of time.

The doctrine of presecriptive easements would be raised in court, effectively as a defense to charges of trespassing. In fact, there's no way to record them until the court has ruled that there is such an easement. Until then, it's just a legal theory.