Gates and adverse possession

[Anonymous Poster]

Hello all,

By way of background:

My neighbor's property doesn't border on the road, so the previous owner
of my property sold my neighbor an easement for his driveway. I don't
currently use this driveway, and I've got a fence most of the way along
it (on my side). However, as luck would have it the neighbor's house is
just about 70 feet from my house, even though I'm 8.5 acres. At
present there's no fence between our houses, and I kind of like my
privacy.

I'm going to finish running the fence between his house and mine, on
my side of the easement. As many of you no doubt know, there's
a law called adverse possession which allows someone to take legal
possession of your property if they have sole use of it for a certain
number of years. Therefore, I want to have a gate so that I can use
the driveway.

So my question is really, how can I build a wide, opaque gate? It needs
to be say 12' wide, or preferably more, to account for a 90 degree turn
into the driveway. The fence around it will be a 6' cedar plank fence, so
ideally it should be too. It could be a sliding or swinging gate, single or
double. I probably won't even use it much honestly.

Thanks in advance.

 

[TerryinMD]

Don,

Is the easement shown on a drawing and described in your deed? Or was this one of these shake of the hands deals with some money changing hands? Is it an easement or a right of way? I'm not sure of the difference myself but there is a difference which may affect what you want to do.

Before going ahead with your plans, I would let the neighbor know of your plans to avoid trouble. Legally and neighborly.

Added stuff - I reread the post. Along with the above, I have a gate to our garden area and will get a picture of it over the weekend and post it. It's a swinging gate and is made out of treated lumber. It could also be made out of any cut lumber that you may have.

Terry

 

[Anonymous Poster]

For the money and the little use your gate will get, the price is a little high. But this may give you an idea about building one yourself.

http://www.hooverfence.com/woodfence/ag.htm

 

[mbjacobs]

Don, check with a lawyer, I think you're trying to solve a problem that you don't really have. As I understand it the key word in Adverse Possession is ADVERSE. If they have your permission to use the property then the Possession is not adverse and they can't take legal posession.

 

[Anonymous Poster]

It's on my title, all right. I did have a couple of discussions with the
neighbor about this. It's an awkward situation. He didn't buy enough
land, so he's always wanting to use mine for various things, which is
okay in general, but I sure wish he'd just buy the driveway from me,
which is what he ought to do. Only he suggested he pay one fifth of
what my real estate agent said I ought to get at a minimum, and then
later in the heat of an argument he said why should he pay anything
for it when he has the use of it anyway.

It's not going to affect his use of the easement -- the new fence and gate
will be along the existing easement -- so I don't think I need to worry
about what he thinks.

I'd appreciate the picture.

 

[Anonymous Poster]

The wife's a lawyer, and an associate of hers does a lot of real estate law,
so yes I definitely could have a problem. At any rate he'd be able to go
to court in 2005 (that would give him the 10 years he needs) and make
a case if he wanted to. I want to make sure he, or the next person who
live there, doesn't even have a case worth contesting.

There's something called prescriptive (proscriptive?) easement too, which
is like adverse possession only it applies to easements. For instance if
your neighbor cuts across your property on his way to work every day,
after so many years he can go to court and say he ought to have an
easement. Or in my case, my title says my neighbor has rights for
ingress, egress, and utilities on my easement, but he uses it for parking
and other things too. He could go to court after some period which I
don't remember (I think it varies by state, too) and expand the use of
his existing easement.

Interestingly, I asked the lawyer if I should send him a letter telling him
to stop, and the lawyer said this could actually be bad if I don't enforce it,
as the neighbor could use the letter as proof of adversity. Strange laws.

 

[Anonymous Poster]

Don,

I don't quite understand the "gate" part...

You are the property owner, you pay the taxes, on your deed and your neighbor's deed is the outline of this easement {on your property}.

I would drive down "your" driveway as far as you can go before you end up on your neighbor's property... then make an entry onto your property {have big 6x6 posts on each side of the entry area-clearly defined- even if it dead ended into a creek or field}... have it clearly posted at this entry and also at the beginning of "your" driveway...No Trespassing-Private Drive. {only your neighbor and "his" guests are allowed use of "your" driveway}

In a friendly chat with your neighbor, he is to immediately stop working, mowing, or using any other part of your property on the advice "your" attorney because of liability concerns... {this is where he can come in later to attempt "adverse possession" by you now allowing him 'unlimited use' of "your" property} {You may also consider following up your friendly chat with a "certified letter" from your attorney stating the same to memorialize the event}

You may also at this opportune time, ask your neighbor to make an offer to buy the driveway and small parcel of your land {he already uses anyways} {Of course the price has to be right up there for you to accept...}

Your good guy-nice guy actions could end up hurting you down the road...

{I spent a few years in/out of the NY Court system on this obscene, illogical, and antiquated Adverse Possession Law... believe me… it was certainly an eye opening and bank draining experience…To prove I was the owner of my own property…?}

 

[Charlie_Iliff]

Don:
Although you will get numerous well-intentioned suggestions here, please do not act on any of them without getting a thorough opinion from an experienced lawyer.
If your wife's associate is the choice, great, but get a complete analysis and opinion so you understand it.
Adverse possession law does vary from state to state. In some states it is purely old english common law, in some statutory or modified by statute. Most states do allow someone who uses your land without permission to gain a property right if the use is open, hostile and uninterrupted for a period of time. Generally no rights accrue if the landowner gives permission for the use. That is the reason for the advice that prohibiting the use may be bad, unless you enforce the prohibition. In some states, it is enough that you use the land yourself, to prevent anyone else getting an interest. Sometimes it is enough to close a gate once in a while to prevent a prescriptive easement. Use of the recorded easement by your neighbor usually can't give him more than the rights of the easement as granted, unless he actively prevents your use of the same area.
These are general statements only, intended only to reinforce the suggestion that you get a formal legal analysis, based on your particular facts, and then act on it. (An additional benefit, as your wife will confirm, is to put the lawyer's malpractice carrier at risk if the lawyer doesn't to it right.)
Good luck.

 

[Anonymous Poster]

<font color=blue>...that would give him the 10 years he needs...</font color=blue>

Don,

That must be unbroken with absolutely no interruption of possession...

That's a key point. {Everytime, you drive down that driveway, everytime you tell him to stop using your land, everytime you do anything {posted signs, your fencing, your mowing and maintaining of property, you dispersing people/trespassers off your land, every interruption you do, you're showing control of your land- everytime starts this "adverse possession clock" all over to the beginning again in your favor...}

This Certified Letter any attorney mails to your neighbor will stop any clock running and restart it in your favor...

And not to step on Charlie's or anyone's toes, I agree to find an experienced attorney in Adverse Possession which is somewhat rare... not like your typical drug store corner divorce attorney you can consult with...

Consulting with a generic attorney with generic advise may only waste some time and money, get you side-tracked and not achieve the results you originally intended to get...

 

[ddl]

My I suggest that any of the advise that is given on this site be thought of in this light. If taking the advise will cost you nothing use the advise as you wish. If the advise could cost you any money, be careful for in the end you are the one to pay for your choices. Take evevrything that is said, then pay the money and get advise from someone that you can hold respondable for the advise.

Dan L