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PeteyPie
May. 14, 2012, 05:39 AM
Has anyone dealt with this problem? I am going to consult an attorney, but it would be interesting to see other input on this topic. I bought a lot that is several acres in a subdivison with four lots. Two of them are developed. My neighbor to the north is using my long driveway to access his property. The subdivision road bounds his property on the east, but he has not put in a driveway to the subdivision road. He used to use access from a road on the west of his land, and he has a big main gate there. When I met him, I told him he could use the driveway for a while since I am not ready to build, but eventually he will have to build his own. He said he has no plans to put in a driveway right away because he has been very busy with work. He works in construction and owns heavy equipment.

I also sent him a letter stating that the driveway is on my land and he has permission to use it, but that I have a right to revoke that permission at any time. I sent a copy for him and his wife to sign and send back, acknowledging receipt of my letter. They have not sent back the letter so I will have to escalate the process. I believe he is trying to get a prescriptive easement, or legal right to use my driveway. I have aerial photos from the county that show the progression of use and rough dates of when he started using the road.

Has anyone dealt with this? What was your outcome? How long and involved was it?

JanM
May. 14, 2012, 07:44 AM
It will depend on the local laws, and only your attorney can advise you about that. And it may depend on any easements in the property records too.

jcotton
May. 14, 2012, 10:06 AM
Why don't you put up a perimeter fence to keep him off your property?

jawa
May. 14, 2012, 10:13 AM
Hopefully you have a title insurance policy. If you got a loan for the purchase of the land, your bank would have required it as part of the closing. If you didn't get a loan, hopefully your RE attorney advised you to purchase an owners policy. If you have a policy the company will help you defend your rights.

I'd be contacting a real estate attorney ASAP. Maybe even investing in a gate and lock.

You could also go to the courthouse and get a copy of the deed for your lot. This would be where all easements would be recorded.

netg
May. 14, 2012, 10:42 AM
Echoing what was said above. It definitely varies by area, by type of land, etc. It also varies by if there are defined easements.

I would certainly want to cut this off if you think he's going to want to take heavy equipment up and down your driveway - our neighbors run a roofing business, and even the tar truck is incredibly annoying when it goes through on the rare morning I'm trying to sleep to 6am. In many cases you have to do this before a certain amount of time or it becomes an established easement, so you are correct to check into it asap.

Interestingly, the edge of my property has an easement for neighbors which was put in as the property was divided up. We're an island of land above flood plains, and it worked out so whoever divided up what used to be a cattle ranch had to put easements on some lots instead of roads because each lot had to be at least 4.13 acres, and making sure not even a corner of a lot was in flood plain made it far less expensive to insure.

goodhors
May. 14, 2012, 12:03 PM
The longer you let him "use the land right of way" the more legal rights he gains. Sometimes there is a time limit before you lose the ability to exclude him any more!! That old law of "We have always used it" is still in effect in many places, so they GET POSSESSION or permanent use of the property!!

I would be getting a gate and some fence up IMMEDIATELY. His problems are NOT YOUR PROBLEMS. You did "nice" with the form letter, no response. So now you NEED TO DO SOMETHING about it. He and family are NOT going to sign that letter. So you have to move things up with the gate and fence his access away. I might skip the gate, just make it an enclosed fence so he has to damage stuff to get in that way. Then you have "proof" that he was trespassing. Lawyer letter denying him access, delivered by the local Deputy, would be helpful too. Our local Sheriff's Dept does those kind of deliveries for a fee.

Don't wait or you will be VERY SORRY. Those time of use legal things can be short or long, and every day he uses it is going to count against you. Lawyer might suggest a 10day warning that road will be closed, to "be nice" and look good if he causes problems. I would be hopping right on this, quit being so "neighborly" because he is just using you. Go read the post on loaning equipment that never got returned or was damaged. Same thing for you.

Hinderella
May. 15, 2012, 04:42 PM
Laws regarding land use vary tremendously from state to state, so your first step should be to consult a local attorney.

Since the subdivision road bounds his property elsewhere, he can't get a prescriptive easement (at least not in the way the law operates in my state) because that's an easement created out of need. If there were no other way to access his property, he would have an easement by prescription. But by your description, he has other access, just hasn't bothered to use it.

Also in my state, he would not gain any ownership or easement rights simply by using your property, no matter how long he did it, as long as you had identified it as your property and clearly stated that his use was by your permission.

However, in your state, things could be completely different. Consult an attorney, then set a deadline when your permissive use will end.

JanM
May. 15, 2012, 09:54 PM
I agree with Goodhors, and an immediate solid fence, no trespassing signs, and when he pitches a fit tell him to hit the road.

And to address Hinderella's point-yes, you're right the laws really vary by state. A friend was under the mistaken impression that she and the hubby had to put the privacy fence way inside the property line (they didn't in that state, except on certain types of non-residential property), and for years the nice neighbor volunteered to mow with the big riding mower on the 4 foot wide strip on his side. Then they lost house, fence and all to a tornado, rebuilt, and the fence was at the very edge of their property. When the neighbor went ballistic about the fence location my friends got a survey, and told him that it was in the right place, and they needed all of the yard now. The next time they were at their attorney's office he told them that putting the fence in the previous position, and letting the neighbor maintain that land meant that in a couple more years the neighbor could have legally claimed the property, and judging from his reaction about the fence apparently had every intention of doing so.

Burbank
May. 15, 2012, 10:01 PM
go to an attorney that does real estate, laws very so much state by state and the sooner you do this the better, this guy is not your friend

Judysmom
May. 15, 2012, 10:08 PM
Ditto the suggestions to get an attorney now, and please get one who practices a lot of land use - not just closings etc. Btw- in most states (if not all) it takes a few years of non permissive use for a perscriptive easement. Call an attorney ASAP!!

ThisTooShallPass
May. 15, 2012, 11:22 PM
[QUOTE=goodhors;6314152]The longer you let him "use the land right of way" the more legal rights he gains. Sometimes there is a time limit before you lose the ability to exclude him any more!! That old law of "We have always used it" is still in effect in many places, so they GET POSSESSION or permanent use of the property!!



^Can be so very true. You really need to find out your laws ASAP!

in limine
May. 19, 2012, 10:10 PM
Definitely consult an attorney - an experienced land use lawyer should be able to determine if you have anything to worry about after a short consultation.

BTW - a person can't obtain a 'prescriptive easement' if they are using property with the permission of the property owner - permission negates use of property in a manner 'hostile' to that of the owner (even if that permission is later revoked). IMO - The fact scenario you have presented doesn't seem to meet all the requirements for a prescriptive easement - but could be easement by use/necessity/deed.

Do you know if your deed contains an easement for this use?
Was your property and his property ever part of the same parcel?
How long has he been using your driveway?

Good luck - hope you can get a positive resolution

clanter
May. 20, 2012, 10:28 AM
Also in my state, he would not gain any ownership or easement rights simply by using your property, no matter how long he did it, as long as you had identified it as your property and clearly stated that his use was by your permission.
.

same here, they would have had to maintain the property and present it as theirs before any adverse possession would be enforced as the case law’s foundation is the “possessor of the property actually does possess it “

quarterhorse4me
May. 20, 2012, 11:36 AM
As previously stated, the law varies from state to state but in all states it generally requires a substantially period of TIME to elapse (along with other statutory requirements.) Someone else mentioned it but I would do two things: Put a fence/gate up to stop him from using the property and speak with a lawyer if there is a problem after that.

The gate/fence may resolve the whole issue and you would spend roughly the same as on a lawyer. "Fences make great neighbors!"

JanM
May. 20, 2012, 07:53 PM
The main problem for me is that you have no real proof of when he started using the driveway, some with the photographs, but nothing in writing. I think your suspicion that you need to do something now is totally correct. It might be that you will fence the area you own off, and that will be the end of it, but if not I would add No Trespassing signs that agree with the legal requirements where you live, and hopefully he will get a clue and scrape a driveway on his side of the line.

in limine
May. 22, 2012, 10:48 PM
Just a follow-up thought regarding the 'just put up a gate' suggestions - IF your neighbor does have a legal right to use your road, and you fence him out, then you could be in the wrong and he might have a legal case against you - and that would be bad :(

Probly worthwhile to find out who has the legal right to do what before taking any permanent action ...... and talk to the neighbor again in person (preferably in the company of others). Make your concern clear and let him know exactly what you want him to do/not do. Always better to resolve issues yourself, before you start bringing in the legalities....people can get really prickly (and more stubborn than usual) once attorneys are involved.

That said, I still think a legal consult to understand the legal issues for your own benefit would still be helpful - and if cost is a concern, you can check with your local bar association - sometimes the attorneys on their referral list will give you an initial consultation for free (or cheap).

susanne
May. 23, 2012, 01:55 AM
I think the time for resolving matters on your own passed when he ignored your letter. I've twice hired an attorney to write a letter; it didn't cost very much and was very effective. A consultation would also give you a clear picture of the legalities, which you need to know immediately. Do not wait.

HorsingRound
May. 29, 2012, 02:58 AM
I'm dealing with a similar situation.

Assuming there is no easement, have they used your property for longer than five years? It gets more complicated if this is the case.

If not, then I'd resend the letter via certified/registered mail, return receipt. The letter should restate the revocable granting of access, like you did before (good!).

Also, I'd post "permission to pass granted by the owner" type signs, not "no trespassing" signs. The no trespassing signs may automatically invoke an adverse possession situation whereas granting permission is revocable.

Contact your title insurance company or an attorney for representation/advice.

Each county has different rules, from what I understand.

nightsong
May. 29, 2012, 05:23 AM
Something has gotten you concerned, so DON'T WASTE TIME!!! Obey that "little voice" that is telling you, "Danger, Will Robinson!"!

PeteyPie
Jul. 20, 2012, 06:48 PM
I'm dealing with a similar situation.

Assuming there is no easement, have they used your property for longer than five years? It gets more complicated if this is the case.

If not, then I'd resend the letter via certified/registered mail, return receipt. The letter should restate the revocable granting of access, like you did before (good!).

Also, I'd post "permission to pass granted by the owner" type signs, not "no trespassing" signs. The no trespassing signs may automatically invoke an adverse possession situation whereas granting permission is revocable.

Contact your title insurance company or an attorney for representation/advice.

Each county has different rules, from what I understand.

Yay!!! I received my signed letter of permission, finally! He apologized for the delay and was very nice about it. I can now breathe a sigh of relief, and know my neighbor's intentions. As I said originally, I did not mind him using the driveway, I just did not want to incur or establish any rights on his part.

FWIW, I used the letter on this form suggested by the California Dept of Transportation as a model:

http://www.dot.ca.gov/hq/row/landsurveys/Study_material/California-Adverse-Possession.pdf

I cannot stress how relieved I am. Thank you all for your advice.

goodhors
Jul. 21, 2012, 10:57 AM
Always nice to have your things neatly wrapped up in "legalese" for self-protection. Glad it worked well. AND an apology! What a good day for you.

Underthebridge
Jul. 21, 2012, 12:09 PM
Congratulations and thanks for the link, I got my letter written and ready to sign.

Grataan
Jul. 21, 2012, 01:11 PM
Awesome! Good news :) Maybe he'll turn out to be a great neighbor too since he apologized! :) Fingers crossed for that ;)

wsmoak
Jul. 21, 2012, 02:34 PM
I'm glad it worked out. I was a bit worried about the cries to "put up a fence and lock him out!" You may have to live next to him for years and years.

Our property has a 25' easement along one edge, and I would be happy if they wanted to use it and develop a road there. As it stands, our house faces a back corner of the lot, and the driveway leads up up to the garage and back door. If they did that, we could have a separate entrance for guests and deliveries in the *front* of the house.

PeteyPie
Jul. 21, 2012, 03:26 PM
Congratulations and thanks for the link, I got my letter written and ready to sign.

For what it's worth, I'm printing the cover letter here too, since it worked out well. I have to say that when I have talked to these neighbors, they have seemed super nice to the point that I was totally reassured after speaking to them.... for a day or so. Then I started worrying about actions vs. words and imagining the potential problems and scenarios, which is a good thing, because it's better to communicate and avoid future problems. This cover letter is not the most sophisticated but it did the job. I had it proofread by a couple of friends for tone and content and they had me simplify it because I had put all sorts of other stuff like my worries, and too many irrelevant details... kind of like what I'm doing here!:) Anyway, here is the body of the cover letter with names changed:


Dear John and Mary,

It was a pleasure talking to you both when we came out to the land a few Sundays ago, March 3rd. It is great to have nice neighbors at our new property; you seemed like very nice people and we really enjoyed the conversation. We are looking forward to building our house and bringing our horses to this beautiful area.
I am writing this letter to touch on an issue we share with our properties, namely, the driveways. As we said on Sunday, we are happy to allow you to use our driveway for now. I understand that you (John) are very busy with work and don't have time to put in your own driveway to XX Lane, and you prefer not to use your access via YYYY Road. This is not a problem; until we start our building project your use doesn't affect us. We have been told that we should send you this good neighbor form to give you written permission to cross the property.
On Sunday, John emphasized that the neighbors all try to help each other, and we do want to be helpful and generous too. We want to have good relations with our neighbors and we want to promote improvements in the neighborhood that are mutually beneficial and mutually agreed upon.
In the spirit of being good neighbors, we are happy to give you legal permission to use the driveway. John and Mary, my husband and I have signed two identical forms, one to be returned to us after you sign it, and one for you. I have also included a self-addressed, stamped envelope for our copy.

Sincerely,
(Me):)

lorilu
Jul. 21, 2012, 08:01 PM
I would add the word "temporary" in the last paragraph:

In the spirit of being good neighbors, we are happy to give you temporary legal permission to use the driveway. John and Mary, my husband and I have signed two identical forms, one to be returned to us after you sign it, and one for you. I have also included a self-addressed, stamped envelope for our copy.

L

PeteyPie
Jul. 22, 2012, 01:43 AM
I would add the word "temporary" in the last paragraph:

In the spirit of being good neighbors, we are happy to give you temporary legal permission to use the driveway. John and Mary, my husband and I have signed two identical forms, one to be returned to us after you sign it, and one for you. I have also included a self-addressed, stamped envelope for our copy.

L

That is probably good advice, but it was just the cover letter. The attached form they signed was very similar to the sample shown on the CA DOT website (somewhere above in this thread) and states that we have the right to revoke permission at any time.

5
Jul. 22, 2012, 02:07 AM
I think easments must be noted in the deed of trust. Consult an attorney for the actual rule.

But...

Is it really worth starting a war over? Could you just sell him the driveway strip of land or stipulate in writing that both of you sign that he may use it if he improves and maintans it. This could be a win win for both of you, he gets his easment and you get a better driveway.

PeteyPie
Jul. 22, 2012, 04:58 AM
I think easments must be noted in the deed of trust. Consult an attorney for the actual rule.

But...

Is it really worth starting a war over? Could you just sell him the driveway strip of land or stipulate in writing that both of you sign that he may use it if he improves and maintans it. This could be a win win for both of you, he gets his easment and you get a better driveway.



1. There is no easement, therefore, nothing in the deed of trust. The issue is that the neighbor is using my driveway instead of his own. If he does that without permission for a certain period of time and under certain other conditions spelled out in the DOT link:
http://www.dot.ca.gov/hq/row/landsur...Possession.pdf

...he can gain a legal right to use of my land, called a prescriptive easement. In some cases, such trespass can result in the landowner losing ownership in favor of the trespasser, called adverse possession, but that is not the issue here. The landowner has several recourses which are explained on the DOT link. The best recourse for me, because I don't mind him using my driveway for a while, is to give permission, which stops the progression of events leading to a prescriptive easement being formed. My concern was that he would ignore/refuse the permission, and maintain that he had a right to my property.

2. There is no war. The neighbor has signed the permission letter.

3. I don't want to give up ownership or control of my property. The driveway runs right down the middle of my lot and I do not want neighbors bisecting my property. In fact, I would like to move the driveway nearer to the edge of my property so I can have room for a pasture. The neighbor has several hundred feet of developed subdivision road along one side of his property and rough roads from there that access his house -- roads which he can easily improve because he owns heavy equipment. On another of his property borders, he has a main entrance with a big arched gate entrance. My driveway is a shortcut for him, not his only access.

4. As for selling my driveway: that may sound simple to you, but it sounds like a nightmare to me. First of all, you can't sell a piece of an existing parcel of land without surveying it, subdividing it, recording it, and doing that under county rules/regulations. The property is zoned for a certain size and cannot be subdivided. For instance, if I sell him my driveway, that divides my lot into two pieces. It creates different offset requirements for septic and well, which limits my future development. Each of those can only be located a certain distance from each other, from a property line, and from the neighbor's wells and septic systems. The costs of the surveys, new HANS (sp?) reports, and other county fees for such a process would be huge. And why would he want to pay me anything if he were able to get use FREE through a prescriptive easement? Also, assuming I could sell the driveway and do all the lot division stuff, I would be left with one parcel too oddly-shaped to be useful and another parcel much diminished in size, which would reduce the value if I needed to sell.

As for having him maintain the driveway, how would I enforce that? What if I want it paved and he doesn't? What if I don't think he is keeping it up as he should? Would I then be having to sue him?

5. As for the suggestion that I "stipulate in writing that both of you sign that he may use it if he improves it...", I already did say, in writing that he may use it. The issue is that he wasn't responding to the letter so I did not know if he was going to claim a prescriptive easement. If he claimed a prescriptive easement and succeeded, he would have use for free, and not have to do anything. That was my worry.

But all is rosy now. Letter is signed and I know that the neighbor is intending to do what he said, which is improve his own driveway.

clanter
Jul. 22, 2012, 09:36 AM
But all is rosy now. Letter is signed and I know that the neighbor is intending to do what he said, which is improve his own driveway.


Nice that it has all worked out to your satisfaction... I suggest only the possible addition that I can see if others are using this as a model would have been to have a provision of the signatures to have been notarized

I am not an attorney but deal in stupid documentation all the time; it just makes life easier to have witnesses that can say the signatures are correct.

I was wondering, does this access that you have granted extend through the person to his invitees? I believe I would talk with my insurance carrier to see what my liabilities would be and make them aware of the arrangement... just in case there ever was a problem I would like to be able to lay the letter on the table that I advised the carrier on such and such date.

PeteyPie
Jul. 22, 2012, 02:10 PM
Nice that it has all worked out to your satisfaction... I suggest only the possible addition that I can see if others are using this as a model would have been to have a provision of the signatures to have been notarized

I am not an attorney but deal in stupid documentation all the time; it just makes life easier to have witnesses that can say the signatures are correct.

I was wondering, does this access that you have granted extend through the person to his invitees? I believe I would talk with my insurance carrier to see what my liabilities would be and make them aware of the arrangement... just in case there ever was a problem I would like to be able to lay the letter on the table that I advised the carrier on such and such date.

I would have like to have had it notarized. That would have been the best route. The reason I didn't go that route is that it is a little delicate coming at a neighbor and I didn't want to come at him (them) too strongly. I was concerned that if I made them jump through hoops, they simply wouldn't sign. Perhaps I could have sent money to cover the cost of the notarization to make it less of a hassle, but I chose to keep it simple. I sent the letter with a Post Office Proof of Delivery so I have evidence that I sent it, and I hope if if came to that, the court would recognize that only the recipient who received the letter would have signed and returned the letter. I have the envelope in which the signed letter was returned to me, with postmark. So in short, I have a paper trail showing a progress of conversation, including the cover letter, which states that I gave them verbal permission at an earlier date. I can't say that someone should emulate my course of action, but I did follow the suggestion on the oft above-mentioned DOT link.

Your suggestion about insurance is a great idea. It didn't occur to me to even worry about liability. I'll need to talk to my agent for my homeowner's insurance. Since this is unimproved land, I don't have any insurance on it, and it didn't occur to me to include it or even ask about in with my agent. Oh god. Something else to keep me awake at night worrying about!

As to whether the access permission extends to invitees, I, and I think any reasonable person, would assume that if you give someone permission to use a driveway it would include all normal use, including guests and delivery persons.

I know that there are other precautions or protections I could take, but I am happy with how this has turned out, because really, the intention of the neighbor is really important. If he makes it clear, as he has, that his intention is to use my driveway but acknowledge that use can be terminated and that he has no rights, that is good. If he had refused to sign the paper, continued to use the driveway, and fought me if I took it to the next step, I would have known his intention to take control and ownership (ownership in a sense -- I'm not a lawyer) of that portion of my land.

nightsong
Jul. 23, 2012, 04:03 AM
The intention of the neighbor can only be guessed at. It's entirely likely that he DID intend to keep using your driveway. You don't say to someone "I intend to sneakily STEAL your land." Kinda ruins the 'sneaky' part. Keep vigilant.

Burbank
Jul. 24, 2012, 12:44 PM
it would still be a good idea to set up an appointment with a real estate attorney and make sure your I's are dotted and T's crossed, bring all your signed paperwork with you