Prescriptive Easement and Permissive Use
by Roger T. Manwaring

Just as it is possible to take title to someone else’s land by adverse possession by using it as one’s own for the required time period, an easement (the right to use the land of another in a certain way) can be obtained by prescription. Under Massachusetts G.L. c. 187, §2, a person can acquire a prescriptive easement upon the land of another by use of that land in a manner which is open, notorious, adverse to the owner, and continuous for a period of at least twenty years. Each element must be established by clear proof. The purpose of these requirements is to put the owner on notice of the hostile use of his property by the claimant.

This article focuses on the requirement that the use be “adverse.”  The terms “non-permissive,” “adverse”, “hostile” and “under a claim of right” are often used interchangeably. “Adverse” use has been defined by the courts:  "One's use of another person's property is adverse to that person if the manner of his use and the circumstances thereof demonstrate that he does not recognize or consider himself to be subject to an authority in that person to prevent his use of the property."  Adversity is presumed where there is evidence of use, not otherwise explained, for 20 years. 

However, that presumption can be rebutted by evidence that the party claiming the easement used the property with the permission of, or license from, the true owner. Permissive use is inconsistent with adverse use and defeats prescription. Thus, the owner of property can prevent a person using the property from acquiring prescriptive rights simply granting that person express permission to continue the use.

The concept of permission, simple to state, is difficult to apply in practice. In determining whether a use is permissive, a number of factors should be considered, “including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.”  The state of mind of the possessor is irrelevant, his actions being the focus of the inquiry. 

Section 458 of the Restatement of Property (which is routinely cited by Massachusetts courts, indicates that for a use to be non-permissive, it is essential that the user not recognize the authority of the owner to either prohibit or permit that use. The Restatement states:  To be adverse it is not essential that a use be hostile. It is not necessary that it be made either in the belief or under a claim that it is legally justified. It is, however, necessary that the one making it shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance. It is the non-recognition of such authority at the time a use is made which determines whether it is adverse. It must be made in non-recognition of any such authority existing in the person as against whom the use is claimed to be adverse.

While a property owner's mere implied acquiescence to the claimant's use may not constitute such permission as will render the use non-adverse, permission which goes beyond mere acquiescence may be sufficient to block the acquisition of a prescriptive easement. Even implied permission is sufficient to prevent prescription. One commentator has noted that the line between implied permission and acquiescence is difficult to draw. According to the Massachusetts Land Court “in dealing with implied consent, the focus of the [Supreme Judicial Court … appears to be not what was said between the parties , but whether there was an explanation for the use [thereby rebutting the presumption] or whether the owner of the land at issue had any control over the use by the defendants who were claiming prescriptive rights.”

In a recent case, for example, the Appeals Court held that the use by neighbors of the beach portion of the landowner’s property did not create a prescriptive easement in favor of the neighbors, because the use was permissive. The court relied in part on evidence that the owner’s predecessor, had not merely acquiesced in the neighbors’ use, but had instead exercised control over the beach whenever it was used in a manner she found objectionable. The court also noted that none of the neighbors challenged the owner’s right to exercise that control.

An initially permissive use can become sufficiently adverse to support a prescriptive easement. However, the user bears a heavy burden to establish that the use became adverse at a later time. The user must establish that the owner had actual, not constructive notice of the change. In one case, for example, the heirs of an estate allowed a caretaker to continue living on certain property after the former owner’s death, pursuant to an agreement which, among other things, allowed the caretaker to continue to occupy a stable rent free and operate it as a boarding stable, but not as a riding stable. The agreement also required the caretaker to vacate upon notice. The caretaker claimed to have acquired adverse possession of the home/stable and a prescriptive easement over certain paths. To show adverse use, the caretaker pointed to the fact that, in contravention of the agreement, he had operated a riding stable and had altered the stable in ways prohibited by the agreement. The Appeals Court rejected his claim, noting that the use had started as a permissive one. The court held that although the use may have conflicted with terms of the agreement between the parties, the understanding of the parties had not been vitiated and there had been “no such unambiguous act of ouster as would warrant a jury in finding the commencement of an adverse user.”

The adversity of a use, and the associated issue of permission, are highly fact dependent. It is essential when asserting or defending a prescriptive easement claim to understand in detail any interactions between the claimant and the owner, how the land was used and how that use changed or evolved over time. The testimony of the parties, as well as evidence from present and past neighbors will likely determine the issue.

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.