A prescriptive easement—also known as an easement by prescription or an adverse easement—is an easement (right to use property) created by a use of property (the servient estate) that is open, continuous, and adverse to the owner of the property (the servient estate).

To satisfy the requirement that the use be continuous, the use must take place over a required period of time—which may be specified in a state’s court opinions (common law or case law) or in its statutes if the state legislature has written the law regarding easements into statutes or code. If the state legislature has written a law in statutes or codes the law is said to be codified.

In New Hampshire, a prescriptive easement is recognized under common law and is codified under state statutes. To establish a prescriptive easement in New Hampshire, the use of the property by an individual who is not the owner must be open, continuous, uninterrupted, and adverse for a period of 20 years. This means the individual must use the property in a manner that is visible and without the permission of the owner for two decades. The use must also be exclusive, which means the property is used as if the individual were the owner. New Hampshire law requires that the person claiming the easement must prove these elements to the satisfaction of the court. If successful, the individual does not gain ownership of the land but acquires the right to use the property in a specified manner. It is important for property owners to be aware of any unauthorized use of their land to prevent the establishment of prescriptive easements. An attorney can provide specific advice on how to handle potential prescriptive easement issues.