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Easement by Prescription Question for a Townhome

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sheeijan

Junior Member
What is the name of your state (only U.S. law)? Georgia

My mother has a townhome that is in the middle of other townhomes. For the past 16 years she has gone through the backyards of the two townhomes on her lefthand side to bring her lawnmower (and any other equipment) from her backyard to the front to cut her front lawn. One of the townhomes has a new owner and they put up a fence that completely blocks this access. No gate or opening at all. The other side (righthand side) has always been blocked by a wooden fence so my mom is now completely unable to go around from the back to the front (unless she wants to drag her lawnmower through her home). Is there anything she can do? There is no easement on the property, from what I understand it's always been a "handshake" agreement with the previous owner. The only thing I can think of is that it's been 16 years and might fall under the prescription easement?
 


justalayman

Senior Member
A "handshake agreement" implies permissive use. A claim for a prescriptive easement is predicated on adverse use.
 

sheeijan

Junior Member
A "handshake agreement" implies permissive use. A claim for a prescriptive easement is predicated on adverse use.
OK, I must have misunderstoodt he whole prescriptive easement thing when I was reading. Bottom line though, is there nothing that I or my mother can do regarding the gate and regaining access back to be able to walk around the properties, or is she just out of luck?
 

justalayman

Senior Member
Are you certain there isn't an easement? This sounds very similar to another situation asked about here. If i recall there might have been some easement for access such as you are asking about although nobody knew about it until a situation like you're came about.

If you have an hoa or coa or whatever check with them about the matter.
 

sheeijan

Junior Member
Are you certain there isn't an easement? This sounds very similar to another situation asked about here. If i recall there might have been some easement for access such as you are asking about although nobody knew about it until a situation like you're came about.

If you have an hoa or coa or whatever check with them about the matter.
Thanks for the reply, unfortunately there is no longer any hoa or coa in existence anymore - apparently it went over 20 years and since they weren't doing anything anyway (literally nothing, not even collecting any dues for years), it just disappeared a few years ago.

I've looked at the plat and all the info I could find and didn't see any easement on there, but from the information I've gleaned I may have to go look at the original? But I can't figure out where I'm supposed to go to look at the original. Someone told me county records but I wasn't sure what that meant exactly? I mean, do I do a search for Cobb County land records?
 

justalayman

Senior Member
There could be Several places where the original plat map may be found. The county register of deed (or something similar in name) might be one place. Basically wherever an entity creating a development would have to register the plat is where it could be found.
 

sheeijan

Junior Member
There could be Several places where the original plat map may be found. The county register of deed (or something similar in name) might be one place. Basically wherever an entity creating a development would have to register the plat is where it could be found.
Okay, I think I know where exactly I need to go to find it, now I just have to wait until next week (I'm leaving to go out of town tomorrow). Thanks very much for your help, I will update this with any information next week!

Edited to add: I went and found a copy of the covenants, and there is language in there that restricts fences (copied below):

(I) Fences shall not be permitted to be erected forward of the rear foundation wall of the house. The planting of trees, shrubs, or any other type of plantings that would afford privacy may be used in lieu of constructing additional fencing, provided, however, that they are maintained in accordance with the provisions set forth elsewhere in this Declaration.

Of course the question is whether these covenants are still applicable when the HOA is dead? I have no idea if covenants are still applicable, this was signed back in 1985.
 
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sheeijan

Junior Member
Okay, I think I know where exactly I need to go to find it, now I just have to wait until next week (I'm leaving to go out of town tomorrow). Thanks very much for your help, I will update this with any information next week!

Edited to add: I went and found a copy of the covenants, and there is language in there that restricts fences (copied below):

(I) Fences shall not be permitted to be erected forward of the rear foundation wall of the house. The planting of trees, shrubs, or any other type of plantings that would afford privacy may be used in lieu of constructing additional fencing, provided, however, that they are maintained in accordance with the provisions set forth elsewhere in this Declaration.

Of course the question is whether these covenants are still applicable when the HOA is dead? I have no idea if covenants are still applicable, this was signed back in 1985.
Well, bad news. I went to the courthouse and was able to get a copy of the original plat, and there is no easement on there. So no luck in that direction. I think I'm back to the covenants, but since they are expired (I confirmed that they are), I don't think legally I have any recourse that direction either? I'm not 100% sure. Someone I know suggested I try to bluff it by pointing to the covenants and hoping she doesn't know that they have expired, but that doesn't seem very nice.
 

154NH773

Senior Member
Go back to the registry and get the deed for the property you'd like to cross. Look back and get the first deed written for that property when the subdivision was created. It may contain a covanent reserving the right to cross the property. Although it might not be noted on the subdivision plat, it's possible it might be in their deed.
 

sheeijan

Junior Member
Go back to the registry and get the deed for the property you'd like to cross. Look back and get the first deed written for that property when the subdivision was created. It may contain a covanent reserving the right to cross the property. Although it might not be noted on the subdivision plat, it's possible it might be in their deed.
Okay, that's clever. I'll try to go back to the courthouse, unfortunately it's an hour drive for me so it's not the easiest thing in the world for me to go do. I'll update this once I've gone. My husband looked at the copy of the plat I had gotten and he's questioning whether it's actually the original, because it's dated 1986 while the covenants that I have is dated 1985. So I have to go reconfirm that it's the original that I got I guess.
 

154NH773

Senior Member
You can probably call a title company in the city where the registry is located and if you give them the name and location of the properties they can pull the deeds and send them to you. I used to pay about $15 per title or less. Ask them to pull all the deeds going back to before the date of the subdivision formation. Once you get them, you can look to see if previous deeds are referenced, and then ask them to pull those. I gathered over 30 deeds while living over 1000 miles away. Takes time, but time is cheap.
 

latigo

Senior Member
What is the name of your state (only U.S. law)? Georgia

My mother has a townhome that is in the middle of other townhomes. For the past 16 years she has gone through the backyards of the two townhomes on her lefthand side to bring her lawnmower (and any other equipment) from her backyard to the front to cut her front lawn. One of the townhomes has a new owner and they put up a fence that completely blocks this access. No gate or opening at all. The other side (righthand side) has always been blocked by a wooden fence so my mom is now completely unable to go around from the back to the front (unless she wants to drag her lawnmower through her home). Is there anything she can do? There is no easement on the property, from what I understand it's always been a "handshake" agreement with the previous owner. The only thing I can think of is that it's been 16 years and might fall under the prescription easement?
Have a look see under "easement by necessity".
 

sheeijan

Junior Member
Okay, that's clever. I'll try to go back to the courthouse, unfortunately it's an hour drive for me so it's not the easiest thing in the world for me to go do. I'll update this once I've gone. My husband looked at the copy of the plat I had gotten and he's questioning whether it's actually the original, because it's dated 1986 while the covenants that I have is dated 1985. So I have to go reconfirm that it's the original that I got I guess.
All right, I went back to the courthouse and got the first deed for the townhome in which we're trying to cross their backyard. I've read it three times to make sure I'm not missing anything, and unfortunately there's nothing there (they were sure worried about fire damage though). I also confirmed with them that I had the original plat, which doesn't have anything on there. Finally, I looked up easement by necessity but here in Georgia, Georgia requires an easement by necessity to be expressly reserved. So I don't think I have any luck there either. I also don't think that technically it falls under the definition of landlocked, since it's the backyard only that's "landlocked" and technically you can go through the townhome to get to the front? I even checked to see if there were any utilities that were in the back (like gas) that would require access, but nope. I'm seriously thinking about going to an attorney I know and paying him for a couple of hours of his time to see what he thinks. My husband thinks that we could just circumvent the whole entire problem by buying my mom a weedeater to cut the front lawn (it's literally just two small strips of grass), or just get rid of the grass altogether. But I think it's a point of pride for my mom and she's just angry at the neighbor for locking her in like this.

The thing is, this was clearly covered by the original covenants but since it's expired, there's really nothing else we can do I think? Everybody here had some really smart ideas but I think it was just such an old neighborhood (and incredibly small), it just didn't get done with all the bases covered like it is nowadays.
 

154NH773

Senior Member
Please don't take this the wrong way, but without an easement, the covanent did not provide you with access, only the permission of the neighbors gained you access. Other than that you never had access. Unless you can find an easement document somewhere, my advice would be to find another solution such as you mentioned.
 

sheeijan

Junior Member
Please don't take this the wrong way, but without an easement, the covanent did not provide you with access, only the permission of the neighbors gained you access. Other than that you never had access. Unless you can find an easement document somewhere, my advice would be to find another solution such as you mentioned.
No I agree, if there's nothing in writing somewhere, then legally my mom doesn't have the right. But trying to explain to my nearly 80 year old non English speaking mother that despite her traversing the backyard for over a decade, legally she doesn't have the right and needs to stop complaining, doesn't work too well.

And to be fair, I can see my mom's point that logically it doesn't really make sense to be stuck in the middle of a group of townhomes with no way to get things like lawnmowers and stuff to her backyard. I mean, what if she needed work done back there, like siding replaced? There is literally no way of doing it except to go through her home now.
 
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