An owner grants a neighbor the right to cross the property, and the right is created by long, open and continuous use without permission. This is:
Correct Answer
A) A prescriptive easement
Why this is correct: A prescriptive easement arises from open, continuous, hostile, and notorious use without permission for the statutory period, creating a non-possessory right. Why the other choices are wrong: "A leasehold interest in the crossing strip" is incorrect; a leasehold requires an agreement, not adverse use. "A license revocable at the owner's discretion" is wrong; a license is permission-based and revocable, unlike a prescriptive easement. "A restrictive covenant running with the land" is a deed restriction, not created by use. Exam tip: Prescriptive easements are created by adverse use; they can burden title without being recorded.
Why This Is the Correct Answer
Long, open, continuous use without permission is the definition of a prescriptive easement, and the stem recites the elements almost verbatim. The absence of permission is what makes the use adverse and allows the right to ripen. The resulting interest is a nonpossessory right of use that burdens the servient estate and, once established, binds successors. Because it may be unrecorded, an appraiser encountering a visible pathway or driveway crossing the subject should note it and recommend legal and survey review.
Why the Other Options Are Wrong
Option B: A leasehold interest in the crossing strip
A leasehold arises from a lease, which is a consensual agreement between landlord and tenant with defined terms and rent. Adverse use is the opposite of consent, so no lease could have been formed. The option also mischaracterizes the interest as possessory when an easement conveys only use.
Option C: A license revocable at the owner's discretion
A license is permission, and the stem expressly says the use occurred without permission, which is the fact that distinguishes the two. A license is revocable at will and dies on transfer of the property, while a prescriptive easement survives both. This is the most instructive contrast in the set, because permission is the single fact that determines which one exists.
Option D: A restrictive covenant running with the land
A restrictive covenant is a promise contained in a deed or a recorded declaration limiting what an owner may do, such as prohibiting commercial use or requiring architectural approval. It is created by written agreement, not by conduct, and it restrains the owner rather than granting a neighbor a right to enter. Nothing about crossing a property resembles a covenant.
Permission Kills Prescription
One word decides the whole question. With permission it is a license, revocable forever. Without permission it is adverse, and after enough years it becomes a right the owner cannot take back.
How to use: Scan the stem for the words permission, allowed, or consented. Their presence points to a license; their explicit absence points to prescription. Then check whether the use was open and continuous.
Exam Tip
Distinguish prescriptive easement from adverse possession. Prescription yields a right to use; adverse possession, which additionally requires exclusive possession, yields title.
Common Mistakes to Avoid
- -Assuming long use creates a right even where permission was given
- -Confusing prescriptive easement with adverse possession
- -Relying solely on a title search to identify unrecorded prescriptive claims
Concept Deep Dive
Analysis
A prescriptive easement arises by operation of law when someone uses another's land in a way that satisfies several elements continuously for the statutory period, which varies by state and commonly runs from five to twenty years. The classic elements are use that is open and notorious, meaning visible enough that a diligent owner would notice, continuous rather than sporadic, and hostile or adverse, meaning without the owner's permission. Some jurisdictions add exclusivity or a claim of right. The permission element is the pivot: if the owner granted permission, the use is a license and no prescriptive right can ripen no matter how many decades pass, which is exactly why landowners post signs or issue written permission to defeat prescription. A prescriptive easement gives a right of use, not ownership, which distinguishes it from adverse possession, where the same kind of conduct combined with exclusive possession can transfer title. For the appraiser the difficulty is that prescriptive rights are unrecorded until a court declares them, so they surface through observation and survey rather than through a title search.
Background Knowledge
You need the elements of a prescriptive easement and how they differ from adverse possession, the categories of encumbrance including easements, licenses, covenants, and encroachments, and the fact that statutory periods vary by state. You should also know that prescriptive rights may be unrecorded and are typically discovered by observation or survey rather than title search.
Real-World Application
An appraiser observes a worn two-track crossing the rear of a rural subject with no easement in the title work. She reports the observed use, notes it may indicate a prescriptive claim, recommends a survey and legal review, and states that she offers no legal conclusion about the neighbor's rights.
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