Right of Way

[Dickey]

I bought a house and forty acres about a year ago and recently found out that the Driveway is not where the right of way is. About fifty yards of it crosses another mans property. It seems that their was an old road their so rather than build a new driveway they just built up the old road. This was done about twenty years ago with the owners permission. It hasn't come up and I hope it doesn't but just wondered if he could now block my access to my house if he wanted to. The actual right of way has some very large oak trees which would be not only expensive to move but would take several days.

 

[coveredbridge]

You should really consult an attorney on this matter to determine what your legal rights are.

As I understand it, there is a general legal concept known as "adverse possession" which probably applies in your case. According to this "law" if a person is permitted continuous unimpeded access across another's property for a period of 21 years or more, that access may not then be subsequently restricted, effectively creating a "right of way".

But, IMHO, you need to find a good real estate attorney to review the particulars of your situation and get an opinion from them. /forums/images/graemlins/smile.gif

 

[beenthere]

If you are talking about "an old public road" then it probably didn't revert back to private domain, and is still public but not maintained by the local govt.

As suggested, work with a lawyer before it comes up, then you will know ahead of time how to approach any manuevers by someone else who may have coniving ways to keep you off this 50 yard stretch.

 

[Junkman]

Adverse possession only comes into play when the use is challenged and you continue to use it against there wishes for a certain length of time. If the use was with permission, which you seem to indicate that it was, then it can't be adverse, consequently you can't claim adverse possession. These matters should have been straightened out before you purchased the property, not afterward. If the owner of that property decides that he doesn't want you using his property to gain access to yours, then he has the full legal right to stop you. You might have an action against the seller for not disclosing this matter prior to sale, but it is a long shot if you are to prevail. The only time that you could make a claim of necessity is if that were the only way into your property. The fact that it might be expensive or difficult, doesn't mitigate the circumstances. The real problem will come when the present neighbors land, which you presently cross without an easement, is sold. The new buyer might not want you crossing the land and tell you to construct your own access to your property. Seeking the advise of an attorney is always good advise, however you should have had an attorney represent you at the closing, instead of getting one now after the closing. This is the reason attorneys get paid.... there are there to protect your interest, not the sellers. The real estate agent is also there to represent the interest of the seller. The mortgage company always has an attorney to protect their interest, but it isn't for that attorney to protect your interests in the purchase. I would talk to the neighbor and see if you can get an easement over the portion of the road that crosses his property. Even if you have to pay for that easement, it will still be less expensive than developing your own roadway. It is always better to approach the neighbor before he approaches you. It is also wise to offer to pay his legal expenses for the transaction. People are always more agreeable to these things if they know that it isn't going to cost them money to do you a favor. You will also need to get a surveyor involved to set the lines and give a legal description of the right of way.

 

[DaNag]

RE an attorney - that's always the safest advice when folks don't know all the details surrounding your particular situation. But perhaps there's a better way.

Do you have room on your property to re-route the 150' of driveway? If so, here's what I'd suggest.

Take the high road (no pun intended). Be a good neighbor, and inform your neighbor what you've discovered, and see if you can reach a meeting of the minds. If so, great - problem solved.

If not - spend the money for 150' of driveway; I'd take that route over getting attorneys involved any day of the week. Less headache now and in the future, and probably less cost.

 

[coveredbridge]

Junkman,

In certain circumstances your description of adverse possession may apply, but it is a rather complex and convoluted set of legal principles, which is why I suggested that at this point, consultation with an attorney is advisable.

Here is a link to wikipedia's description of adverse possession. wikipedia adverse possession

A yahoo search of adverse possession will provide many good links. /forums/images/graemlins/smile.gif

I agree that the best time to get an attorney involved is prior to closing a real estate transaction, but in this case that's water under the bridge.

 

[EddieWalker]

I agree with Junkman's advice on aproaching the owner of the land you are crossing. Explain your problem to him and seek his advice and help. People are always more willing to help out with a problem then be forced to deal with "your" issues.

Remember, he's not affected by this, you are. It's not his problem, it's your problem.

Again, Junkman nailed it by suggesting you offer to pay all expenses and do all the work.

Could you swap you legal easment, or access with the new one you want?

The ownere of the land might also want those large oaks to remain and is probably very much awair of the location of the easement, but wants to keep those trees, so he might prefer the change.

Getting it done today is always much, much easier then waiting for it to get done. Nothing gets easier over time, and there are so many unknowns to deal with, you might "NOT" be able to do so in the future.

 

[turnkey4099]

The underlying prinicple here has nothing to do with adverse possession. It is 'presumptive easement', that is, it has been used as access for so many years it has become an established easement. Adverse possession is attempting to gain title to land, not the case here.

I don't think the land owner would stand a chance in court of trying to get him to quit using it.

Harry K

 

[Junkman]

</font><font color="blue" class="small">( About fifty yards of it crosses another mans property. It seems that their was an old road their so rather than build a new driveway they just built up the old road. This was done about twenty years ago with the owners permission. )</font>

It was done with permission of the land owner. You can't claim that you have a 'presumptive easement' when you are given permission to use something. That permission is tantamount to a license, and a license can be revoked. If the new owner were to continue to use the land for 10 or 15 years, since he wasn't granted permission or license, then he could claim a presumptive easement, but since he has only owned the land for a few years, there is no way that he can make that claim of right. Only the previous owner could possibly make that assertion, however, I doubt that it would stand a legal challenge. The courts are not quick to grant to others property rights to land of others, just because of time. Property rights are a corner stone of our society, and courts don't take to trampling those property rights on a whim. I know this because I was down this road about 20 years ago and learned first hand that it isn't easy to take land from a legal rightful owner, just because you have used it or claimed to have owned it. I suggested that he contact the owner, because these type of legal battles are expensive and drawn out for many years before they are adjudicated. Anyone that has been involved in these type of problems will tell you that in the end, they wished that it were settled without going to court and making the lawyers rich in the end. My neighbor tried to take some of my land, and didn't prevail in the end. The bad part of the American legal system is that the looser doesn't have to pay for the costs of the winner. If that were the case, then people would think long and hard about going to court to resolve disputes.

 

[turnkey4099]

Yep, you're correct. I missed the 'permission' bit. I'll bet the lawyers could have a field day with it tho.

Harry K