Adverse Possession and Prescriptive Easements

Adverse possession and prescriptive easements are legal doctrines which allows a neighbor to acquire a legal right to own or use part of their neighbor’s land even without a written agreement. If a property owner just wants to allege it actually owns the neighbor’s property after using it for 30 years, the claim is one of adverse possession. However, if the neighbor only alleges it has the right to a shared use of the property with no transfer of ownership, the claim falls closer to a claim of a prescriptive easement and the statutory time period for the use is 20 years. Although the doctrines are similar and each requires proof of exclusive use, application of the exclusivity prong can be challenging.

What is an easement?

An easement has been defined by the courts as an interest in land which entitles the holder of the easement to make some use of another’s land. Easements are created by express conveyance (i.e., a written agreement), implication or prescription. An example of an express easement would be when an owner of land allows his or her neighbor to use their driveway but retains ownership of the land. This is known as a “driveway easement”. This article will focus on the third type of easement, which is a prescriptive easement, and how the exclusivity requirement is interpreted by the Court.

What is a fee simple interest?

When land is owned in its entirety, the land rights are referred to as a fee simple interest. The owner has the absolute, unrestricted rights to possess, use, sell, or devise the property. For example, when one buys a home, it is usually a fee simple interest that is purchased – you own the whole enchilada!

How does one obtain a prescriptive easement?

Recently, the New Jersey Appellate Division had an opportunity to dive into the differences between a claim of a prescriptive easement and a claim of ownership of land by adverse possession. Shea v. Dipopolo, Docket No. A-3984-23 NJ. App. Div. March 20, 2026 [link]. The plaintiff in the case purchased a home in 2003 and at the time of the purchase, the driveway for the home was in the shape of a horseshoe and part of it was located on an adjoining lot (which was vacant at the time). In 2016, the owner of the adjoining lot built their own home and five years later in 2021, asked the plaintiff to stop using part of the driveway that was over the property line. The plaintiff wanted to keep using the disputed part of the driveway and filed a lawsuit claiming it held a prescriptive easement since the driveway was built in 1990 and had been used by the plaintiff and its prior owner for over 30 years. The plaintiff was not alleging it owned the property under the doctrine of adverse possession, just that it had a right to a prescriptive easement to continue to use the driveway. The trial court used the elements for adverse possession to analyze the claim for a prescriptive easement and found for the defendant. The plaintiff appealed and the Appellate Division reversed the trial court.

The Appellate Division first reviewed the law governing a prescriptive easement:

Thus, to establish a prescriptive easement, a plaintiff must demonstrate its use of the property is “adverse or hostile, exclusive, continuous, uninterrupted, visible[,] and [open and] notorious.” Baker v. Normanoch Ass’n, 25 N.J. 407, 419 (1957). The plaintiff must prove these elements by a preponderance of the evidence. Plaza v. Flak, 7 N.J. 215, 222 (1951). “Open” use means the “use is not secret.” Yellen v. Kassin, 416 N.J. Super. 113, 121 (App. Div. 2010). “Notorious” use denotes the “use is actually known to the owner, or is widely known in the neighborhood.” Ibid. (quoting Restatement, § 2.17 cmt. h). Additionally, the claimant must show the adverse and open or notorious use continued for thirty years. Id. at 120, 122. However, pursuant to the doctrine of tacking, the claimant may combine the years of use with those of their predecessors in interest. See Plaza, 7 N.J. at 222-23 (combining “plaintiff’s use and that of his predecessors in title”); Leach, 218 N.J. Super. at 29. Although the claimant bears the burden of proving the required elements of a prescriptive easement, the adversity element is presumed if the claimant “shows open, continuous, uninterrupted, exclusive use for the prescriptive period.” Plaza, 7 N.J. at 222.

The Court also commented on the law to acquire title to property by adverse possession. The Court noted that to succeed on a claim for adverse possession, “the plaintiff must use the property exclusively and it cannot be shared with anyone, including the owner of the property in fee simple. See Raritan Engine Co. No. 2 v. Mayor & Council of Edison Twp., 184 N.J. Super. 159, 166 (App. Div. 1982).”

Reading the case up to this point would lead one to believe that the “exclusive” nature of the use in a claim for adverse possession and prescriptive easement is the same – why not, the same word is used! However, when read in context, the word exclusive has a slightly different meaning depending on what property rights one is seeking. When reviewed in the context of an adverse possession claim, possession that is “concurrent with that of the true owner is never exclusive.” However, when the same word is reviewed in the context of a claim for a prescriptive easement, shared use is acceptable as confirmed by the Court:

By contrast, in the prescriptive-easement setting, the claimant’s use may be shared with the record owner and still meet the exclusivity requirement as that term is used under this analysis. See Randolph Town Ctr., L.P., v. Cnty. of Morris, 374 N.J. Super. 448, 454 n.4 (App. Div. 2005), vacated on other grounds, 186 N.J. 78 (2006) (per curiam) (explaining the exclusivity requirement as used in the prescriptive easement context “means only that the user have acted independently of the rights claimed by others, such as the general public”); Bioletti v. Sindoni, 135 N.J. Eq. 609, 616 (Ch. 1944) (“[T]he requirement of ‘exclusive’ . . . does not mean that the complainants shall have been the sole users . . . but simply that the individual right shall not depend for its enjoyment upon a similar right in others . . . .”); Restatement § 2.17 cmt. g (“The exclusivity requirement is most often applied to deny prescriptive rights to one whose use is indistinguishable from uses being made by the general public.”).

The trial court denied the plaintiff’s claim seeking a prescriptive easement finding the shared use of the driveway area in question was not “exclusive” since the neighbor also used the disputed area. The Appellate Division, in reversing the trial court, held that the trial court used the exclusivity requirement for an adverse possession claim (i.e., no shared use), not a prescriptive easement claim (i.e. shared use is permissible). The Appellate Division concluded “Plaintiffs’ use was independent of any rights claimed by others, as they exercised it as owners of the neighboring property for ingress and egress to their property, and did not depend on any similar right held by defendants nor the general public. See Randolph Town Ctr., 374 N.J. Super. at 454 n.4.”

When evaluating a claim in a property line dispute it is crucial to define what property rights the parties are fighting over – ownership of land or just the use of the land. Also, when confronted with a possible claim down the road, it is advisable to police your boundary lines and take action before the statutory time period runs. A prior blog post discussed this issue. [Link to my prior blog on this topic].

When You Need Help Disputing an Adverse Possession, Trust Stark & Stark

If you are dealing with a neighbor’s use of your property, or if you are concerned that your own access may depend on another person’s land, consult experienced real estate counsel to evaluate your rights and options. The real estate team at Stark & Stark can help you develop an inspection and action plan or litigate an adverse possession claim. A proactive approach can avoid costly litigation and a possible bad result. Reach out today to learn more.