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Business and Corporate Law: Critical Thinking Essay Example

The case involving Robert Drake and Robert Smersh revolves around the validity of the easement by prescription in situations where property ownership has changed. In the case study, Drake bought a cabin from Floyd Massey knowing that they the driveway to the cabin sat largely on the Wallens' land (Millers and Jentz, 711). After Smersh bought land from the Wallens, he decided to exercise his right of ownership to the land and objected to the continued use of the driveway, which prompted Drake into filing for prescriptive easement of the piece of land occupied by the driveway (Ibid).

Considering that the driveway was in use from 1950, it is plausible to argue that Drake's registration for prescriptive easement is valid. This is because the driveway served the property that he bought for over 21 years, which validates his application for prescriptive easement (Pennsylvania General Assembly, 139). While the Pennsylvania laws require that the adverse user of the property show proof of using the property for at least 21 years, the American laws on adverse possession and prescriptive easement are broad and may allow for prescriptive easement and adverse possession for using a property for varying durations between 5 years and 40 years (Jordan 1; Pennsylvania General Assembly, 139; Law Commission of India, 13). In the UK, the limitation period is 12 years for individual property and 30 years for state property (Burns 782). This implies that Drake qualifies for the prescriptive easement since he can prove that the owners of his cabin have been using the driveway for a sufficient time to warrant the application.

On a different approach, it is plausible to argue that the right over the driveway is not enforceable for Drake despite the previous owners having used it for an extended duration. Jordan argues that if such use of a property emanated from friendships between the two neighbors then another person cannot inherit the rights to use the land (3).

The question of continuity also supports Drake's application for easement by prescription since it is clear that his use of the driveway was not new but had rather become necessary (Pennsylvania General Assembly, 139). The use of a property for a continued time without the registered owners' objection qualifies the adverse user to exercise a right over the property.

The court should rule in favor of Drake since he satisfies the requirements for a prescriptive easement. While Smersh aims to repossess the piece of land occupied by Drake's driveway legally, one could argue that the previous owners of the piece of land had ceded their rights over the land by allowing the continuous use of the driveway for over 21 years (Pennsylvania General Assembly 140). The fact that Drake was aware that a large portion of the driveway was on Smersh's property implies that he understood his position regarding the easement. The knowledge may also demean his quest if he is aware that the Wallens granted Massey the permission to use the driveway on the basis of being friends (Jordan 3). Such an agreement is not transferable on sale of the property and the new owner cannot enforce his or her right over the property (Ibid).

The adverse possession and prescriptive easement allows trespassers to enforce their use of properties through legal means. As noted by the Law Commission of India, the laws enable an extended illegality to become legal where a trespasser only have to persist in violating the tort law for twelve years after which he or she applies to become the legal owner of the property under adverse possession (10). Indeed, the conditions under which a person acquires the right to use another person's property ought to emanate from a legal process or contractual agreements between two parties. Use of the adverse possession or a prescriptive easement in courts of law to grant people the right to use or own a property appears to be rewarding criminal acts (Law Commission of India 11).

The easement by prescription for instance may threaten the peaceful coexistence between neighbors by discouraging people from tolerating one another. The law must safeguard all social and economic aspects of the society that facilitate the harmonious living in a community. Continuing to enforce such rights such as the prescriptive easement and adverse possession, the law courts fail to acknowledge the problems that would arise if neighbors become opportunistic and try to take advantage of their neighbors' kindness or ignorance. It is plausible for one to argue that courts' continued acknowledgement of the two concepts encourages land grabbing and encroachment of land reserved for natural habitat such as forests or sanctuaries that may not have active registered owners.

Prescriptive easement and adverse possession may also increase hostility between people. A requirement for the adverse possession to be granted is that the adverse user must have used the land continuously and notoriously for an extended duration, mostly above twelve years (Jordan 3). Arguably, the person must be on the offensive and acting with deliberate intentions of acquiring land illegally. Such acts inhibit peaceful coexistence that inherently requires that everyone respects the properties of other people and are confident that the law will protect their properties.

In conclusion, the adverse possession and prescriptive easement is illogical as it appears to rewards law breakers while punishing people who are overly tolerant with those who appear in need. They contradict the essence of laws in a country by disregarding the lawful provisions that provide guidelines on land use and acquisitions.

Work cited

  1. Burns, Fiona. Adverse Possession and Title-By-Registration Systems in Australia and England (2011). Melbourne University Law Review 35: 773-820.
  2. Jordan, Cora. "Easements Acquired By Use of Property." Neighbor Law: Fences, Trees, Boundaries and Noise' (1994). Nolo Press.
  3. Law Commission of India. Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property (2012). Web: accessed 14 April 2014, <http://lawcommissionofindia.nic.in>
  4. Miller, Roger, and Gaylord Jentz. Cengage Advantage Books: Business Law Today: The Essentials. Cengage Learning, 2014.
  5. Pennsylvania General Assembly Local Government Commission. "Title by Adverse Possession and Easement by Prescription." Pennsylvania Legislator's Municipal Deskbook, Third Edition (2006).