The Supreme Court of Virginia on Prescriptive Easements: Hafner v. Hansen

In Hafner v. Hansen (April 15, 2010, Record No. 09-0972), the Supreme Court of Virginia addressed whether or not a property owner whose property is served by an underground sewer line has a prescriptive easement for the line across his neighbor's property. You can read Justice Keenan's decision in Hafner here.

Prescriptive easement cases often include similar analyses as adverse possession cases, about which we have previously written here and here.

In order to establish the existence of a prescriptive easement, an owner must prove that his use of another person's property satisfies each of the following tests:

1. The use must have been adverse and under a claim of right.


2. The use must have been exclusive.


3. The use must have been continuous for a period of at least 20 years.


4. The owner of the servient estate (the property over which the easement is alleged to run) must have had knowledge of it and acquiesced in its use.

In Hafner, the critical issue was whether Hafner's predecessor-in-interest had knowledge that a sewer line lay 11 feet underground his property and served an apartment building on Hansen's property. Hafner claimed that the prior owners most certainly did not know about the sewer line -- after all, the line was (1) underground and (2) not referenced in the deeds conveying the property.

The Arlington Circuit Court disagreed, holding that the prior owners should have known about the sewer line based on plumbing records (this raises the question of how many of us have reviewed our neighbors' plumbing records!).

The Supreme Court reversed, stating that the existence of the plumbing records were insufficient to establish knowledge of the previous owners and that -- in any event -- the maximum period that such knowledge could have existed based on the evidence was 17 (rather than the required 20) years.

The analysis in Haffner suppports a proposition that we often repeat to clients who believe that they may have a prescriptive easement over the property of another: establishing such an easement in court may not be impossible, but it certainly is not easy.