Idaho Prescriptive Easement Law

Many are surprised to learn that an easement is not required to be in writing for legal enforceability. An easement is a right to access, use, and/or enter the property of another. A number of unwritten easements exist under Idaho law, which are as legal and valid as a signed written easement in the eyes of the law. One such easement is called a prescriptive easement. Similar to the concept of adverse possession under property law, a prescriptive easement exists where an individual or individuals have used a road, trail, or otherwise used another’s property without permission for a long time. Below, we discuss in further detail the elements of the rule and practical considerations of applying the rule for Idaho property owners and users.

Prescriptive easements have been recognized in Idaho for decades. A person claiming a prescriptive easement must prove “by clear and convincing evidence” that their use of the property in question was “(1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period.” Lemhi County v. Moulton, 163 Idaho 404, 408 (2018). Frequently, a prescriptive easement claim is defeated by evidence that the easement was used based on permission of the property owner. The time period for demonstrating a prescriptive easement is now quite long—twenty years. Prior to 2006, the prescriptive period was five years. All of the above elements must be proven, which means, to summarize, the use has to be open, continuous, adverse, and without permission for twenty years, unless the use can be proven for five years before 2006. There are other considerations and aspects of the rule which apply in certain circumstances that we have not explained here for the sake of brevity in providing an overview. The law can change and each factual circumstance is different so be advised to consult an attorney regarding the full range of applicable law and relevant facts in a given case.

As an example, a neighbor may drive a dirt road through his neighbor’s property for more convenient access to a back field. If the neighbor has openly driven the road without any permission and the neighbor’s prior owner also used the road, with use going back decades, very likely a prescriptive easement exists. Even though someone else owns the property on which the road is located, he or she would not be able to stop the neighbor from using the road which is now a legal easement.

Commonly, property owners do not take kindly to the idea of another using their property without permission, even if a prescriptive easement exists. In those cases, the conflict of whatever intensity needs to be resolved in some fashion. Alternatively, some individuals may claim a prescriptive easement that is actually not valid, due to one or more of the required elements being absent. Where prescriptive easements involve some interaction between the easement holder (or claimant) and the property owner, significant room for disagreement and conflict exists. The best step is often communicating to seek a resolution between neighbors or the easement claimant and property owner. Understanding, respect, and compassion go a long way. However, it is not uncommon that an easement issue cannot be resolved through friendly conversation. In this case, attorneys often assist with finding a resolution. Attorneys can provide real value in assisting their clients to understand the true legal status of an easement in question, as well as possible solutions. With an understanding of the validity of an easement or potential uncertainty regarding various relevant facts, parties can more easily determine a proper solution. A solution may be as simple as educating a property owner that a prescriptive easement clearly exists and he or she is required to allow another person to use an easement through their property under Idaho law. In other situations, more creative solutions may be required.

Determining the legal existence of a prescriptive easement involves technical and tricky analysis. We have a team of real estate attorneys at Racine Olson, PLLP who practice regularly and are experienced in the details of Idaho real estate law. If you would like to speak with an Idaho attorney regarding easements, please contact Racine Olson, PLLP at 208.232.6101 or you can e-mail us directly at racine@racineolson.com.