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Prescriptive Easement/Trespassing

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  • Prescriptive Easement/Trespassing

    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?
    "Random capitAlization really Makes my day." -- AndNirina

  • #2
    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.
    You can't fix stupid-Ron White

    Comment


    • #3
      Why don't you put up a perimeter fence to keep him off your property?

      Comment


      • #4
        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.

        Comment


        • #5
          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.
          Originally posted by Silverbridge
          If you get anything on your Facebook feed about who is going to the Olympics in 2012 or guessing the outcome of Bush v Gore please start threads about those, too.

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          • #6
            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.

            Comment


            • #7
              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.

              Comment


              • #8
                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.
                You can't fix stupid-Ron White

                Comment


                • #9
                  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

                  Comment


                  • #10
                    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!!
                    Unrepentant carb eater

                    Comment


                    • #11
                      [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!
                      "Police officers are public servants. Not James Bond with a license to kill."

                      Comment


                      • #12
                        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

                        Comment


                        • #13
                          Originally posted by Hinderella View Post

                          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 “

                          Comment


                          • #14
                            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!"

                            Comment


                            • #15
                              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.
                              You can't fix stupid-Ron White

                              Comment


                              • #16
                                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).

                                Comment


                                • #17
                                  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.
                                  They're not miniatures, they're concentrates.

                                  Born tongue-in-cheek and foot-in-mouth

                                  Comment


                                  • #18
                                    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.

                                    Comment


                                    • #19
                                      Something has gotten you concerned, so DON'T WASTE TIME!!! Obey that "little voice" that is telling you, "Danger, Will Robinson!"!

                                      Comment

                                      • Original Poster

                                        #20
                                        Originally posted by HorsingRound View Post
                                        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/landsur...Possession.pdf

                                        I cannot stress how relieved I am. Thank you all for your advice.
                                        "Random capitAlization really Makes my day." -- AndNirina

                                        Comment

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