Neighbor Claiming Prescriptive Easement?

[In.the.Piñons]

I have a neighbor who is claiming my driveway is also their "secondary access" to their property. They have their own driveway, so I have no idea why they would need to use mine. Anyway, they have no legal easement, but claim they have been using my property as "secondary access" for 30 years. I spoke to the police about it today and they said there's nothing they can do because they "might" have a claim to a prescriptive easement, so it's a civil matter.

Has anyone dealt with the before. What was the outcome. And yes I know the law varies state to state, but I'm still curious how things went.

I tried talking to this guy but he is one of the most unreasonable people I've ever had the pleasure of meeting.

 

[paulsharvey]

I have a neighbor who is claiming my driveway is also their "secondary access" to their property. They have their own driveway, so I have no idea why they would need to use mine. Anyway, they have no legal easement, but claim they have been using my property as "secondary access" for 30 years. I spoke to the police about it today and they said there's nothing they can do because they "might" have a claim to a prescriptive easement, so it's a civil matter.

Has anyone dealt with the before. What was the outcome. And yes I know the law varies state to state, but I'm still curious how things went.

I tried talking to this guy but he is one of the most unreasonable people I've ever had the pleasure of meeting.

1st, is there an access to their property at this 2nd location?

2nd; if there is, take a look at Google earth, and see how long it's been there

3rd; if there isn't, look for signs of an old access, pipe, roadbase, no large trees, ruts, ect; and check back on Google earth

4th; The burden is on them to prove to a judge that they have the easement, not you to prove they dont

 

[paulsharvey]

It's entirely possible they have a historic access, and they likely can continue use. If they just want it for ease of us, and can't provide evidence, or a court order, block it, but up signs, and tell them to come back with a court order to remove the blockage.

How long have you owned the property? Is it possible the previous owner allowed continued access? That very well could have created an easement, without your knowledge.

 

[paulsharvey]

You say "they have no legal easement" I Think you mean they don't have a Recorded Easement. That does Not mean they don't have a legal easement. Continued use, verbal agreement, or even a paid agreement, all can be legally binding, and very well might not be recorded.

 

[In.the.Piñons]

1st, is there an access to their property at this 2nd location?

2nd; if there is, take a look at Google earth, and see how long it's been there

3rd; if there isn't, look for signs of an old access, pipe, roadbase, no large trees, ruts, ect; and check back on Google earth

4th; The burden is on them to prove to a judge that they have the easement, not you to prove they dont

He doesn't directly access my drive from his property (even though we share a boundary). It looks like he access my property via another shared driveway that does have easement rights. In other words there are three houses that do have easement right to use my driveway, but he isn't one of them. None the less he uses their road and mine in order to gain "secondary access".

I did look on Google earth history and it does not look very used in the past.

I understand that the burden is on him, but since the police won't do anything I would have to take him to court to keep him off my property.

 

[In.the.Piñons]

You say "they have no legal easement" I Think you mean they don't have a Recorded Easement. That does Not mean they don't have a legal easement. Continued use, verbal agreement, or even a paid agreement, all can be legally binding, and very well might not be recorded.

Yes, but I assume (perhaps incorrectly?) that it's not legal until it's gone through the courts and is proven to be legal.

Otherwise anyone one can just come on your land and use the excuse they've been doing it for years, right?

 

[RjCorazza]

These issues can get very complicated, and irritating (as you are no doubt aware).
We delt with an access issue on my deceased parents property, which was similar. Neighbor's driveway was on my parents property with no recorded easement. What differs in their case, was that my parents gave written revocable permission to use the property. That permission took the wind out of the sails of the neighbor when he threatened adverse possession.
Adverse possession is very similar to an Easement by Prescription, so the use must be without permission, continuous, and notorious for x years (varies by state).
In our case we hired a lawyer who said that they could conceivably win in court by claiming an Easement of Necessity. The lawyer talked to the daughter (the neighbor was elderly, and would be selling the house soon) and basically told her that neither property was sellable with the encroachment issue, so she had the driveway moved over 20'.

So after that long tale, if you want to assert your property rights you should probably retain an attorney. I would also immediately close off access with a fence or gate. Good luck.

 

[In.the.Piñons]

It's entirely possible they have a historic access, and they likely can continue use. If they just want it for ease of us, and can't provide evidence, or a court order, block it, but up signs, and tell them to come back with a court order to remove the blockage.

How long have you owned the property? Is it possible the previous owner allowed continued access? That very well could have created an easement, without your knowledge.

The trouble is I can't block this neighbor without blocking other neighbors that have legal access.

I've owed this property for three years. They have been there for 30 years.

Here is my states law. Looks like he doesn't have a case since there has been co-usage for over 20 years.

Prescriptive Easement A Prescriptive Easement can be acquired by the adverse use of property for the requisite period of time, usually after a period of 18 years. In Colorado a prescriptive easement applies when someone has made use of access to a property continuously, without the owner’s consent, with no attempt of concealment of the use or access, for a period of 18 years. Most commonly, this is applied to thoroughfares crossing over someone’s property. The law requires that the use of an easement accessing a property must have been “open and notorious,” constant, without any co-usage of the property by the actual owner. Essentially, this means that the property owner knew or should have known it was going on throughout the 18-year period and made no protest to the “adverse” use over the property.

 

[ning]

This will change from state to state, but in order to establish a prescriptive easement someone typically has to use your land in an obvious way, regularly, without permission for some length of time.

If they've been using your driveway quite obviously and you've never given them permission, for ~5-7-10 years (depends on locale), they may have a case.

If never, or hardly ever, use your driveway, in an obvious way, then they don't have a case for recency. If they've been doing it sneakily, like when they know you're not around, it doesn't count; it has to be blantant.

Assuming they don't have a registered or historical easement, I don't think they can say "well before you moved here I used to use that driveway every day for 10 years but I haven't for the last three years" because they should've gotten the prescriptive easement when they were actually using it.

I have a semi-example - my mom built her house in the 70s almost on the property line. She now parks on the neighbor's land, next to the house; she originally parked elsewhere but obviously this was more convenient so it happened. It's quite obvious that she uses the neighbor's road to access the parking spot, and the parking spot is quite definitely on their land. She'd have a great case for a prescriptive easement, except she never went to a judge about it and instead got in trouble with the neighbors when they sent her a letter to GTFO their land and stop parking there. Too late. She may've been able to fight them in court over it because of the long history of her using it, but she negotiated with them that they'd let her continue parking there herself (she's 84 now) but no rights were conferred.

In your case, if they're not actually using that driveway in as I mentioned an obvious way, tell them where to stick their easement. Probably talk to a lawyer first, though, before you get nasty... though in my opinion, they're basically telling you they have a right to use your property and that's being nasty first. Still, clarify your local laws via a lawyer.

 

[dodge man]

Other people use the same driveway but have an easement? If so that keeps you from blocking it off. If it’s just your driveway I’d gate it and lock it and keep him from using it.

I’m a land surveyor, I’ve seen people fight over shared easements but not a case like yours.