Common Law Property Doctrines: Easements, Adverse Possession, Escheat

Common law property doctrines are judge-made rules, built up over centuries of court decisions, that can change who owns a piece of land or who has the right to use it. Four of them matter most to ordinary landowners: easement by necessity, dedication, adverse possession, and escheat. One gives a neighbor the right to cross your property. One converts private land into public land. One can transfer ownership to someone who has been using your land long enough. And one hands property to the state when no one is left to claim it. Each operates differently, but all four can override what you assume your deed guarantees.

Easement by Necessity

Every parcel needs a way in and out. When a piece of land is completely surrounded by property owned by others, courts recognize an easement by necessity: a legal right to cross a neighbor’s land to reach a public road.¹ Without it, a landlocked owner would have no way to use the property, or would be entirely at the mercy of whichever neighbor controlled the only approach.

What You Have to Prove

Courts do not grant these easements casually. Two things must be true. The landlocked parcel and the surrounding land must once have been a single tract under one owner, and the lack of access must have been created at the moment that tract was divided.¹ If the land was already landlocked when you bought it from an unrelated owner, this remedy is probably off the table.

The standard is strict necessity, not convenience. You must show the parcel is truly inaccessible by any legal route. An existing easement, a license to cross, or a difficult but usable path to a road will each defeat the claim.

Where It Runs and Who Pays

When a court grants the easement, it typically chooses a route that minimizes disruption to the servient property. The cost of maintaining and repairing the path generally falls on the person who benefits from it. When both landowners use the same path, courts tend to split costs based on each party’s share of use.

An easement by necessity lasts only as long as the necessity. Build a new public road that reaches the parcel directly, or buy adjoining land that opens another route, and the easement can be terminated. That makes it fundamentally different from a permanent right-of-way written into a deed.

The Prescriptive Alternative

Necessity is not the only route to a legal right of access. A prescriptive easement works like adverse possession applied to a right-of-way rather than to ownership itself. If you have been crossing someone else’s land openly and continuously, without permission, for long enough, you may acquire a legal right to keep crossing. The difference is timing: a prescriptive easement is earned through years of use, while an easement by necessity arises from the shape of the land at the moment it was subdivided.

Recording Matters

Because easements by necessity are implied by law rather than written into a deed, they do not automatically appear in public land records.¹ A future buyer could purchase property with no idea it is burdened by a neighbor’s right to cross. The cleaner approach is to formalize the easement through a court order or a written agreement and record it with the county. That protects everyone involved. Filing fees for the underlying action vary by jurisdiction but typically run a few hundred dollars, with attorney fees adding significantly more.

Dedication

Dedication is how private land becomes public property. The most visible version happens during residential development, when a builder carves streets, sidewalks, and park space from a larger tract and transfers them to the local government. A less visible version happens when a landowner lets the public use part of the property for years without objection.

Express Dedication

An express dedication is a deliberate transfer for public use. The common methods are filing a subdivision plat that designates areas as public roads, utility corridors, or parks, or signing a deed that explicitly conveys land for a public purpose.² Either way, the document must make the owner’s intent unmistakable.

Implied Dedication

Implied dedication is where owners get caught off guard. When the public uses part of your property openly and continuously for years and you do nothing to stop it, a court may conclude you effectively gave the land away. The required length of use and the strength of evidence vary by state, but the logic is the same everywhere: silence in the face of obvious public use can be treated as consent.

Offer and Acceptance

A dedication is not complete until both sides act. The owner must offer, and the government must accept. Acceptance can be formal, such as a city council resolution, or informal, such as a public works department paving and maintaining a road for years.² Once accepted, the transfer is generally permanent. The owner loses the right to block public access or to use the land in ways that conflict with its designated purpose, and the obligation binds every future owner of the remaining private property.

Mandatory Dedication and Its Limits

Local governments regularly require developers to dedicate land for streets, drainage, and public facilities as a condition of subdivision approval, so new development pays for the infrastructure it creates rather than shifting those costs to existing taxpayers.³

There are constitutional limits. The U.S. Supreme Court has held that a required dedication must have a direct connection to the impact of the development and must be roughly proportional to the harm the development would cause. A city cannot demand a riverside trail easement from a project that has nothing to do with river access or flooding. When those limits are crossed, a mandatory dedication becomes an unconstitutional taking.

When the Public Walks Away

What happens if a city stops maintaining a dedicated road or closes a park? It depends on the original deed. A conditional dedication typically causes the land to revert to the original owner or their successors once the government abandons the designated use. An unconditional dedication leaves the land with the government even if the original use ends. The language used at the moment of dedication can control what happens decades later.

Adverse Possession

Adverse possession lets someone who occupies and uses another person’s land long enough and openly enough claim legal ownership of it. The doctrine sounds jarring, but it exists to reward productive use and to resolve situations where the record owner has effectively abandoned any interest. Statutory periods range from as few as three years in some states to more than 20 in others, and the occupant has to meet every element for the entire period.⁴

The Five Elements

Courts generally require the claimant to prove all of the following:

Actual possession. You must be physically using the land in a way that fits its character. Farming cropland, fencing a vacant lot, or living in a structure count. Occasional visits do not.
Open and notorious use. Your presence has to be obvious enough that the true owner would notice on reasonable inspection. Secret occupation does not start the clock.⁴
Hostile possession. This does not mean aggressive. It means you are using the property without the owner’s permission. Written permission or a lease defeats this element entirely.
Exclusive possession. You must be the sole occupant, using the land the way an owner would. Sharing it with the public or with the true owner defeats the claim.
Continuous possession. You cannot leave and come back. Abandoning the property for a meaningful stretch resets the statutory clock to zero.⁴

Some jurisdictions add a sixth requirement: paying property taxes on the land throughout the occupation. Where it applies, that payment is further proof the occupant treated the land as their own.

Color of Title

If you hold a document that looks like it transfers ownership but is legally defective, you have what courts call color of title. A deed with a forged signature, or a conveyance from someone who did not actually own the property, both qualify. Many states shorten the statutory period for a claimant with color of title. Colorado reduces its standard 18-year period to 7 years when the claimant has color of title and has paid taxes throughout. Georgia drops from 20 years to 7 under similar conditions. The reasoning is that someone who genuinely believed they owned the land, and behaved accordingly, deserves a faster path to clear title.

Tacking

You do not necessarily have to occupy the land for the full statutory period yourself. If an earlier occupant met the elements and then transferred the interest to you, you can add their time to yours. This is tacking. There must be a direct legal connection between the successive occupants, such as a sale or inheritance. Two unrelated trespassers who happen to use the same land at different times cannot combine their periods.⁴

Land That Is Off Limits

Government-owned property is generally immune. Protection ranges from absolute in some states to more limited in others, but the broad rule is that public land cannot be lost through private occupation. Squatting on a city park or a federal parcel, no matter how long, produces no ownership claim. Before investing years in occupying what looks like abandoned ground, check whether a government entity holds the title.

When the Clock Pauses

The statutory clock does not always run at normal speed. If the true owner was a minor, mentally incapacitated, or otherwise legally disabled when the adverse possession began, most states pause the limitations period until the disability is removed. The disability has to exist at the start of the occupation. If the owner becomes incapacitated years later, the clock generally keeps running.

Defending Against a Claim

The simplest defense is not to ignore your property. Inspect it regularly, and if you find someone using it, act immediately. Written permission is one of the most effective countermeasures because it destroys the hostility element. Even a short letter acknowledging the person’s use and characterizing it as permitted will stop the clock. Posting no-trespassing signs and keeping tax payments current also help, though neither is as decisive as directly addressing the occupation.

Quiet Title

Meeting the elements does not transfer ownership automatically. The occupant has to file a quiet title lawsuit asking a court to recognize them as the legal owner. The evidentiary bar is high, because the claimant is asking a judge to override the official property records. Courts typically expect clear proof of each element, backed by utility bills, photographs of improvements, tax receipts, and neighbor testimony. If the court is satisfied, it issues an order granting ownership, which the new owner records in the county land records. That recording step is essential; without it, the claim stays invisible to future buyers and lenders.

Escheat

When someone dies without a will and without any identifiable heirs, their property does not float in legal limbo. The state steps in as the ultimate successor through escheat, taking ownership so the assets stay managed and productive.⁵ Each state has its own escheat laws, and probate courts handle the search for heirs before the transfer to the state becomes final.

Beyond Estates

Escheat has expanded far beyond its original job of inheriting land from people who died without heirs. Modern unclaimed property laws apply the same principle to dormant bank accounts, uncashed paychecks, forgotten security deposits, insurance payouts, and stock dividends. Banks and businesses must report these assets to the state after a period of inactivity. Dormancy periods are typically three to five years for bank accounts, though they vary by state and by the type of property. Account activity, even logging into online banking in some states, can reset the clock.

Reclaiming Escheated Property

Escheat is not always permanent. Most states keep a window, sometimes indefinite, during which legitimate heirs or original owners can come forward. For estates, that means presenting proof of relationship to the deceased through birth certificates, death certificates, and genealogy documentation to the probate court. For unclaimed financial accounts, the process is simpler: most states run searchable online databases where you can look up your name and file a claim. The federal government maintains a central directory at USA.gov linking to every state’s unclaimed property office.⁶ Processing times vary but often take 90 days or more.

If you have lived in several states, check each one. Unclaimed property is reported to the state of the owner’s last known address, not the state where the bank or company is based. Administrative fees are sometimes deducted, though many states return the full value. The longer you wait, the harder recovery gets, especially for assets where supporting records have been lost.

1
Legal Information Institute. Implied Easement by Necessity
2
North Carolina Law Review. Dedication — Acceptance of Streets in Subdivision — Public User
3
University of Richmond Law Review. Mandatory Dedication of Public Sites as a Condition in the Subdivision Process in Virginia
4
Legal Information Institute. Adverse Possession
5
Legal Information Institute. Escheat
6
USAGov. How To Find Unclaimed Money From the Government