What constititutes a prescriptive easement?

I’m interested in purchasing a lakehouse with a shared driveway. The 2 original homeowners built their homes at the same time 23 years ago. A concrete driveway runs the length of Homeowner A’s property parallel to Homeowner B’s property line. Homeowner A “verbally” agreed to share his driveway with his neighbor. This continued for 16 years until Homeowner B sold his home to the current residents, who’ve had the same verbal agreement from Homeowner A to share the driveway for the last 7 years. If we purchase the home, Homeowner B has “verbally” agreed to allow us use of his driveway too. However, if he sells his vacation home 2, he said the ne owners may not abide by this agreement. Isn’t this a “prescriptive easement”?

Asked on September 14, 2012 under Real Estate Law, Louisiana


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It is my understanding that on the state of Louisiana  - the state which you list here - "easements" are called "servitudes" under the law.  There are two types: a predial servitude and a personal servitude.  I think that your situation involves the latter. A charge or burden on something for the benefit of an individual is a personal servitude. There are  three types of personal servitudes: usufruct (use of the property for benefit as long as it is not damaged), habitation, and right of use (similar to an easement while allowing use of the property but denying full enjoyment of the property). I believe that you have a right of use here.  It may be best to speak with an attorney about it and see if it can be written in to the deeds of the homes (for a price I am sure it can be).  Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.