Neighbor Claiming Prescriptive Easement?

[IndyIan]

So, just having a lawyer send a legal letter to cease and desist is gonna cost around $1200. Maybe that is worth it to prevent future claim, but $1200 isn't going to settle a contested claim.

I would just book an hour with a long time community lawyer to talk about what your options are? Bring the neighbors letter, and a summary of your communications with him, have a copy of your registered survey, and any easements with you. Summarize the ownership history, usage history, who uses the driveway now, and write up what's been going on. He should be able to figure if the neighbor has a right to use your driveway and if their letter means anything?

We had some driveway issues accessing our property when our neighbor passed away and the kids wanted to sell the farm, and the smartest thing I did was go to their lawyer and ask what's the deal. He was a local lawyer and respected in the community, and was initially hesitant to represent us both, but saw this wasn't a big deal to sort out, or going to be a big money maker. Anyways, it saved sending $1200 letters to other lawyers.
In the end I paid for a couple hours of lawyer time, and a small survey at the driveway, all for around $1200 and we all lived happily ever after.

 

[ning]

In almost all cases, yes. That's why in general, being a "good neighbor" is a bad idea. The length of time varies, and the requirements of it are highly different from state to state, but allowing access is a bad idea. If our OPs case though, he needs to consider what it costs to be "right". Some times you can be right, and it's still not worth the money for the fight

It's not allowing access that's the problem. If you explicitly give permission to use the property, they can't claim adverse possession or a prescriptive easement - they can, of course, be difficult to evict if they actually live on the property.

The problem is when someone does something without permission and the owner doesn't explicitly complain or permit.

When we moved to our current house, a neighbor used our driveway to access their property. I notified them that for the time being they had my (revocable) permission to do so. In our case, making them stop never became an issue because another property behind theirs got sold and built on, and that property had an easement through the permittee's land and they made their own driveway, so the guy ended up using the new driveway and there's a ditch between the two roads where he used to cross over (the new driveway goes straight up, while the old one curves around).

IMO the good-neighbor thing to do is - assuming you're dealing with an equally good neighbor - permit occasional access if it's really needed (like my guy, who was poor and clearly not in the position to put in his own road). In op's case, he's already got a bad neighbor with a serious attitude, and it's time to lawyer up before he loses some of his property rights, because if the "co-usage" argument doesn't hold (my guess is that it does!), the @$$'s use of the driveway in defiance but with no written notice of denial will result in a prescriptive easement, which today wouldn't be a big deal if it's just aholeneighbor's occasional drive but if the land back there is split and multiple houses put on? boom, lots of traffic.

Lawyer up.

 

[buckeyefarmer]

Here to see what happens.

 

[MGP4506]

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.

The police are right about it being a civil matter. You may have to check with a lawyer that deals with property. Also when you bought your place did they do a title search? If there was one it maybe listed in that.

 

[ruffdog]

So, just having a lawyer send a legal letter to cease and desist is gonna cost around $1200. Maybe that is worth it to prevent future claim, but $1200 isn't going to settle a contested claim.

The neighbor would then have to prove his side. If he states he had been using it for 20 years, ask him how much money he has contributed towards the maintenance of the driveway. Do any of the neighbors pay for upkeep? Why should he get a free ride while other people pay for maintenance? Maybe charge him the maintenance costs for all the years he says he used your driveway. What if YOU choose to pave YOUR driveway? You should be able to split the cost with the people with easements.

 

[buckeyefarmer]

What do other neighbors say about him using their drive, before their drive joins your drive?

 

[paulsharvey]

The neighbor would then have to prove his side. If he states he had been using it for 20 years, ask him how much money he has contributed towards the maintenance of the driveway. Do any of the neighbors pay for upkeep? Why should he get a free ride while other people pay for maintenance? Maybe charge him the maintenance costs for all the years he says he used your driveway. What if YOU choose to pave YOUR driveway? You should be able to split the cost with the people with easements.

Normally, easements do Not include an obligation to maintain, by either party.

No one mentioned this, and it's a crap shoot, but have you looked at your counties public works GIS system? Being that it is a multiple party easement, the County could have taken the easement to ensure access. Many counties don't have this kinda info easy to find, but some do. There are cases where a multi party easement is transferred (or taken) by the county.

Although I do believe Pinion, it's easy to have record of an easement drop away over the coarse of multiple sales, regulation on how far back a title search goes, property splits/combining, ect.

If you do successfully block his access, and he Does have legal access, he May be able to come after you for damages, inadditon to you allowing it.

 

[MossRoad]

Read this entire thread.

Help! I need legal advice re: easements

My neighbor has an easement thru my property " for ingress and egress, 20' in width upon the existing roadway" The existing roadway is a gravel road about 10' wide. He is now trying to widen the existing road and also take more of my land at the end of this road by adverse possession or...

www.tractorbynet.com

It did not end well.

Get a lawyer if you plan to continue your quest to keep this guy off the end of your driveway. It just might not be worth it.

Yeah, principles, morals, I get it. But reality and the legal system don't always work the way we think they should. Sometimes you have to eat a turd sandwich. Sometimes you get a turd sandwich with mustard. Doesn't make it taste any better.

Read that thread from start to end.

I can't emphasize enough before you start anything...

READ THIS THREAD IN IT'S ENTIRETY!
You won't regret it.

Help! I need legal advice re: easements

My neighbor has an easement thru my property " for ingress and egress, 20' in width upon the existing roadway" The existing roadway is a gravel road about 10' wide. He is now trying to widen the existing road and also take more of my land at the end of this road by adverse possession or...

www.tractorbynet.com

 

[DynamicD]

I can't emphasize enough before you start anything...

READ THIS THREAD IN IT'S ENTIRETY!
You won't regret it.

Help! I need legal advice re: easements

My neighbor has an easement thru my property " for ingress and egress, 20' in width upon the existing roadway" The existing roadway is a gravel road about 10' wide. He is now trying to widen the existing road and also take more of my land at the end of this road by adverse possession or...

www.tractorbynet.com

I just read this one...Mainly skimmed and read the OP posts. Cant believe how that ended.
I agree it should be read before getting too carried away...

Personally id say Turn the Other Cheek, let him use it and just smile and wave (probably good to look into the revokable permission route)....But that's me and I am far removed from such an issue. I own 1 acre surrounded by friendly elderly people....
Hope it all goes well at any rate.

 

[MossRoad]

If three others are already using the end of the drive what's one more?

Even though the other three have permission and the 4th doesn't and is a jerk?

Yes, morally (and maybe legally) the jerk doesn't have standing. Just carefully weigh the options (and maybe unforeseen consequences) before taking any actions.

 

[ning]

If three others are already using the end of the drive what's one more?

Even though the other three have permission and the 4th doesn't and is a jerk?

Yes, morally (and maybe legally) the jerk doesn't have standing. Just carefully weigh the options (and maybe unforeseen consequences) before taking any actions.

May be best to send a certified letter granting revocable permission, to throw a wrench in any attempt at a prescriptive easement.

 

[MossRoad]

May be best to send a certified letter granting revocable permission, to throw a wrench in any attempt at a prescriptive easement.

I'd say consult an attorney first, and have the attorney send the letter, if applicable. Never converse with the guy yourself at this point, at least until things are settled.

 

[Sigarms]

If three others are already using the end of the drive what's one more?

Even though the other three have permission and the 4th doesn't and is a jerk?

Yes, morally (and maybe legally) the jerk doesn't have standing. Just carefully weigh the options (and maybe unforeseen consequences) before taking any actions.

I'm not trying to add insult to injury to the OP, but when we looked for our little piece of land 20 years ago, the one thing we stayed away from was any type of easement with neighbors accessing the land for anything.

IMO ANY type of easement with locals using your property to access another piece of property sooner or later is going to be an issue because the boundaries of that easement will most likely be pushed, people being people.

That said, we do have an easement for the power company to access their power lines that does run across a couple of fields.

Since 3 people are already using the property for access, I'm thinking the floodgate has already been open.

End of the day, either the guy is going to going to continue what he wants to do, or the OP is going to have to spend money on lawyers, and then it could be wasting money over a long period of time.

 

[paulsharvey]

I dont know how much a consult with a land lawyer costs, but it might be worth it to get an idea of where you stand. There are a hundred different little aspects that can affect this, such as, if the easement services more than 2 single family homes, in some places, that can be declared an "unmantained county road", and in that case, you can Not restrict its use to anyone, it's a road. You dont want to start the fight before you know that you are going to win.

If you have "Legal Shield" or whatever insurance, I think you get like 3 hours of legal help for cheap, and a discount beyond that, although any legal advice/help/fight is not cheap, no matter what.

As someone above said, I would Not talk to the guy, no good comes from that.

Also, I don't know your area, but it wouldn't be the first time if you really get into a nasty fight with a neighbor that your home mysterious has a fire, or you dog eats rat poison that noone can figure out how he got.

 

[D&D]

Normally, easements do Not include an obligation to maintain, by either party.

No one mentioned this, and it's a crap shoot, but have you looked at your counties public works GIS system? Being that it is a multiple party easement, the County could have taken the easement to ensure access. Many counties don't have this kinda info easy to find, but some do. There are cases where a multi party easement is transferred (or taken) by the county.

Although I do believe Pinion, it's easy to have record of an easement drop away over the coarse of multiple sales, regulation on how far back a title search goes, property splits/combining, ect.

If you do successfully block his access, and he Does have legal access, he May be able to come after you for damages, inadditon to you allowing it.

An easement by itself, would not because road maintenance agreements are separate documents. A shared driveway, normally will have a road maintenance agreement as it’s a requirement from the banks and mortgage issuers. They want to protect their collateral.

 

[Runner]

Since the OP's property extends to the opposite side of the driveway, what would prevent him from installing a nice oilfield pipe fence along that property line WITHOUT any gates on the chief's side? Take lot's of pictures, put up cameras, etc., to document the state of the fence, then if the chief cuts it, you have a claim against him to work with.

 

[newbury]

IMO ANY type of easement with locals using your property to access another piece of property sooner or later is going to be an issue because the boundaries of that easement will most likely be pushed, people being people.

That said, we do have an easement for the power company to access their power lines that does run across a couple of fields.

Fully agree.
When we bought 74 acres next to our house in Mississippi it came with an overhead transmission line ROW. Come to find out the locals considered it to be a "shortcut" for their ATV's between 2 roads, cutting off about 100 yards on a 1 mile route. Sometimes late at night.
For a while we just complained. Then I started setting up a little shooting range for "plinking" across the ROW route. Coincidentally traffic declined.
Now for those of you that don't know in Mississippi

(1) It shall be unlawful for any person to knowingly enter the lands of another without the permission of, or without being accompanied by, the landowner or the lessee of the land, or the agent of such landowner or lessee, to hunt, fish, shoot, or trap on the lands or leases of another

So land is automatically no trespassing and posting is not required.

 

[Sigarms]

Come to find out the locals considered it to be a "shortcut" for their ATV's between 2 roads, cutting off about 100 yards on a 1 mile route. Sometimes late at night.
For a while we just complained. Then I started setting up a little shooting range for "plinking" across the ROW route. Coincidentally traffic declined.

Ironically enough when I set up a target range out in the back field, the ATV traffic and late night coon hunters kind of disappeared as well when we first moved here.

The only time I don't use a suppressor at night is to let everyone know where shooting still occurs. No doubt, someone (who I apparently don't know) let the word out...

ALL my close neighbors know they can use my property if they ask and they treat it like their own (treat others as you would want to be treated by others). Common courtesy.

 

[hayden]

I'd suggest doing two things.

First, he only has a Prescriptive Easement if a court grants him one. I'd have an attorney send him a certified letter reiterating that he does not have an easement and that if he thinks he is entitled to one that he will need to get a court to grant it.

Second, aside from him being a dick head, do you really care if he uses the same right of way that others use? If not, then have the same attorney send him a certified letter noting that he does not have a right of way, but that you grant him revokable permission to use the drive. This is your best defense against a future claim based on adverse possession. Then record the granting of permission in the land records.

With this, he is the one who has to spend the money to go to court to get a prescriptive easement granted, and he's unlikely to do it if you grant him permission to use the road. And you are now in a position where going forward it will be very hard for anyone to claim a right of way, and be clear in the land records that there isn't a right of way, and that you can revoke the permission anytime.

 

[hayden]

An easement by itself, would not because road maintenance agreements are separate documents. A shared driveway, normally will have a road maintenance agreement as it’s a requirement from the banks and mortgage issuers. They want to protect their collateral.

Yes and no. There is a bunch of Common Law around easements, in the absence of explicit agreements.

In a nut shell, the person who uses the easement has the right to maintain it for the allowed use, and also carries the obligation to maintain it to the extent they wish to use it. So if a tree falls across the easement, the person using the easement has to clear it if they wish to use the easement, not the land owner. The land owner can clear it too if they wish, but they don't have any obligation to do it.

The person who's property is encumbered by the easement retains full rights to the easement land, however they are prohibited from interfering with the other party using the easement. So the land owner can use and maintain the land however they wish, as long as it doesn't block the easement.