If your construction company has been using a private roadway across another's property to gain access to your business for less than 20 years, you may want to understand recent legislative changes affecting prescriptive easements in Idaho.

What is a prescriptive easement?  A prescriptive easement is a property right, though not ownership, that is gained when use of property is ongoing without the landowner's consent but with the landowner's knowledge.  Traveling across another person's property to reach or leave one's own is an example of an easement providing ingress and egress.  Examples of prescriptive easements include driveways, roadways, paths or any portion of a property that is continuously used without permission. 

If you have driven for a long period of time over a driveway or road not located on your property, you may have established a prescriptive easement or right to continue driving over that driveway or road. 

However, when making changes to adverse possession laws, the 2006 Legislature may have inadvertently eliminated that right unless you have been using the road or driveway for more than twenty years. 

Prescriptive easements are very similar to and have the same legal basis as acquiring title to property through adverse possession.  (For information on adverse possession, refer to the February 2007 article published in Idaho Business Review's supplement, The Idaho Construction Review, written by Wayne V Meuleman and titled, "Is Your Fenceline Your Boundary?"  A copy of the article can be downloaded from the Meuleman Mollerup website at http://www.lawidaho.com/ or directly at http://www.lawidaho.com/content/view/78/ )

The legal basis for adverse possession is the Idaho statutes on limitations of actions which require that, in a suit or action for the recovery or possession of real property, the person establishing legal title or the record owner is presumed to be in possession unless the property has been held or possessed adversely for a period of five years.  The Idaho Legislature in 2006 changed that statute and other statutes of limitations relating to claims on real property from five years to twenty years. 

According to the attorney that drafted the bill passed by the 2006 Legislature, the intent was to make it more difficult to establish fee-simple ownership or legal title to real property through adverse possession.  However, the legislation passed in 2006 may have inadvertently also affected the time required to establish a prescriptive easement.

Therefore, a person having a valid claim to a prescriptive easement prior to July 1, 2006 may not have a claim to that easement after July 1, 2006 unless the person and his predecessors have been using the easement for a period of twenty years. 

Many properties in Idaho, particularly in rural areas, obtain access over property without an express grant from the legal owner.  Also, roads or driveways authorized by a written easement may not be constructed in the location described in that easement.  Those situations are often resolved by the concept of a prescriptive easement which now may be more difficult. 

While unintended by the Legislature, the result of last year's legislative action is that after 2006 prescriptive easements are not likely to be established until after twenty years of use.  That result may be either good or bad, depending on which side of the issue you may find yourself.  For example, the property owner who decides to build a cabin on his property in the area containing a path or roadway that his neighbors have been using for only the past ten years or so may gain advantage from this legislation.  Conversely, if you are the person or business suddenly denied access across a property that you have been using to gain access to your own, this requirement for twenty year use may be hard to meet. 

Richard Mollerup is a partner with the law firm Meuleman Mollerup LLP, practicing in the areas of real property law, title insurance and escrow law, and in business matters including formation and operation of corporations, partnerships and joint ventures.     Mr. Mollerup is one of only eight Idaho lawyers to be named by Chambers & Partners USA as 2007 America's Leading Lawyers for Business - Real Estate - also named are Meuleman Mollerup attorneys Kimbal Gowland and Mike Baldner.  Mr. Mollerup can be reached at 208.342.6066 or by email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .  More information is available online at www.lawidaho.com.