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Legal Land Theft or Valid Process? — 3 Comments

  1. What if the claim of prescriptive easement has been denied by the servient owner for over 4 1/2 years, and the servient owner posted no trespassing signs along the lot line. What if the dominant trespasser is not landlocked, and has used all of his property – front, back, and sides, since he bought the property in 2010 as a foreclosure. What if there is no easement agreement in any deed going back to 1965. What if the dominant owner orally agreed after survey almost 2 years ago that drive belongs to Dominant owner?

    • First, to clarify. You are stating that the servient tenant (the owner of the land the drive is crossing) has openly denied the use of the drive for 4 ½ years and has posted no trespassing signs along the property boundary lines. You are also stating that the dominant estate (the land that enjoys the use of the drive) is not landlocked (has access without crossing another property) and that the dominant tenant (the owner of the drive using property) has had full use of his property in its entirety since he purchased the land as a foreclosure in 2010 (I am not sure how this it being a foreclosure matters).
      You also are stating that the dominant tenant has no easement (as far back as 1965) and that he orally agreed (after a survey?) nearly two years ago that the drive belongs to the servient tenant.
      Let’s break this down:
      First, the lack of an easement is why someone would be suing for prescriptive rights. If they had an easement and the servient tenant was denying access, then that would be an entirely different legal matter. Also, conceding ownership isn’t a question. If he claimed that he owned the property, he would be seeking adverse possession and not prescriptive rights. The fact that he is wanting a forced easement explicitly means that he doesn’t own the drive.
      A group of us surveyors had this discussion a while back. We determined that, based on normal land ownerships being only 3-5 years, the 20 year rule must apply to the property and not the land owners. The land is what has used the drive for however long, not the current owner/resident. So, we are talking about the estates, not the tenants.
      Now, let’s assume that the drive in question has been used for over 25 years, including the last 4 ½ years that the servient owner has denied access across it (since 1990). I am not stating that it was used every day, just that it has been the access used for that land at least since 1990. The fact that its use was denied after having establishing 20+ years of use may give the dominant estate a claim for prescriptive rights.
      Now, back to the landlocked issue. I don’t believe that it matters that the owner could build another access to the dominant property. That land has enjoyed the use of the drive in excess of 20 years (I assume) and therefore, according to prescriptive rights, it should continue to have use of it.
      Let’s look at this another way. I bought a piece of land in 2009 with a pre-WWII house on top of a ridge on it. The land is surrounded on 3 sides by roads with the fourth side being out the ridge. The drive that the house has used came up the ridge across the neighbor because the direct line to the road was too steep. It is not impossible to build a road, but it would cost a tremendous amount of money when you factor in the retaining walls that would be needed.
      Now, my neighbor (the one my drive crosses) and are doing fine for the first few years. Everything is great. Then we have a sort of falling out. My neighbor gets a survey in 2012 (for whatever reason) and finds that I don’t have an easement for that driveway. He then tries to block my access to this drive.
      This is the reason for prescriptive rights. I purchased the house with access; assess that has been used for years by the house. Now I am to be forced to build a new drive. Is that fair?

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