How to unshare a shared driveway

[seniorjudge]

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[woodyga]

Jackson, Missouri

Hi All,

Well 2 weeks have come and gone and I haven't heard a peep out of the neighbor until yesterday afternoon when I was marking the location of my fence post. The fence permit should be ready tomorrow. Now the adjacent home owner is claiming a prescriptive easement. I said you haven't been using my driveway for 10 yrs. They replied they were going back to the previous owners usage time also. Can they do that? Does anyone know what length of time that someone uses your property in Missouri before they can claim a prescriptive easement. How is this different from hostile possession. My Attorney advised me that for hostile possession they had to be using my driveway for 10 years in Missouri (the current neighbor, not any before them).

Thanks Woody

[Ozark_Sophist]

Actions for recovery of lands commenced, when.
516.010. No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.

I think tacking is permitted under Missouri statute. I might be wrong (it's early).

[woodyga]

Ozark,

Is It considered tacking if the previous owners had a gentlemans agreement to share (permission) the driveway. If I Interpret the 516.010. they had to be using the land without permission.

Found this in Missouri Revised Statutes section 516-010 does it apply :
1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.


Any thoughts
Woody,

[woodyga]

Am I off track here on this one? So far nothing from adjacent homeowners attorney.
It got kinda ugly friday. As I was finishing up laying out the new fence location the neighbors mother shows up screaming and hollering. She even called the police on me. She demanded that they(Police) make me let Her (them) use our driveway. Police told her it was a civil matter and until, unless she could prove she had a right to use our driveway to stay off our propoerty. Of course she screamed I hope you have alot of money cause were gonna fight this. I replied "KNOCK YOURSELF OUT LADY the burden of proof is on you not me". I am a little worried about this tacking thing though. I havent asked my attorney about it yet, because I havent got anything from the neighbors attorney yet. Was hoping you good people might shed some light on this. (save me a few dollars)

Woody,

Originally Posted by woodyga

Ozark,

Is It considered tacking if the previous owners had a gentlemans agreement to share (permission) the driveway. If I Interpret the 516.010. they had to be using the land without permission.

Found this in Missouri Revised Statutes section 516-010 does it apply :
1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.


Any thoughts
Woody,

[Orcons]

Tacking would allow them to claim the previous owner's use as their own. If the previous use was permissive than they could only claim permissive use (which is no use to them.)

In an earlier post you said that one person owned both properties and his mother-in-law lived in the other property. I don't know MO case law but I have never heard of a situation where an owner can possess adversely against themselves (since one person owned both.) Even if you factor in the mother-in-law living there, typically there is a presumption of permissive use between family members (no mother-in-law jokes, please.) Your neighbor would have to argue that there was something in the actions of the mother-in-law that made her use non-permissive and furthermore that they can claim the actions of the mother-in-law as a tenant of the previous owner in their case. Have your attorney look into this or try and do some research yourself but if I am reading this right your neighbor is going to have a tough time with this case.

Now having said that, go back to the earlier posts and see if you can't find some way of working this out. You might win the battle and then face years of acrimony from a neighbor, and no one wants that.

[woodyga]

I just wanted to thank everyone for their help. The good neighbor fence has been installed now. Orcons the reason for the fence and unsharing the driveway was twofold. First the neighbor didnt want to be neighborly to start with and second the property valve has probably gone up by 10k because not many people like a shared driveway situation. This is the first investment property for us.
I thank all that responded to my inquires very much. It looks like if the neighbor had anything legal to go on, I would have heard something by now after 3 weeks.
Thanks again for not hammering me for asking dumb questions.

Woody,

[lcannister]

It looks like if the neighbor had anything legal to go on, I would have heard something by now after 3 weeks.

Not really their Atty maybe filing for adverse possession and getting a court date. Lawsuis and their development can take many moons.

Hopefully this is over for you IF you are in the right.

[woodyga]

lcannister, looks like you were right. We were served yesterday. Her attorney is not claiming adverse possession just that our driveway has been shared since 1962 and are asking the judge to declare it a legal easement, plus punitive damages.
In their plea they even state that previous use was by permission. My attorney is going to file for a dismissal.
Thanks again for the help.

Woody,

[TinkerBelleLuvr]

Thanks for the update. Please do tell us how it ends.

If I'm correct in what you read, there really is a driveway that these folks can use, right? If that is the case, why do they have to use yours?

Secondly, have they provided (or would provide in the future) towards the maintenance of the driveway they were sharing? Since there obviously wasn't any documentation that even showed it was shared, they most likely weren't helping to maintain it. Don't know if it snows where you are at, but did they ever plow the snow?

[woodyga]

Ginny, you are correct. The neighbor has their own driveway and garage. She just wants to park in back of her house and use our driveway to get there. She has not shared in any of the expense of maintaining the driveway. And in her plea to the judge she does not want any responsibility to help maintain it, just wants the " driveway be available for the free unfettered use by her and her heirs and assigns for ingress and egress."
A little more data we offered to sell her an easement, but she declined. She thinks she should be able to use our property because of the previous owners (permissive) usages.
My attorney says it will probably be February before the Judge decides anything. I will keep Yall posted.

Woody,

[TinkerBelleLuvr]

Just thinking PIA thoughts here. Can you move your driveway so that it's not between both of your house and change that area to grass? Obviously not if it goes directly to your garage.

[TinkerBelleLuvr]

While you are in court, ask for the neighbors to pay your attorney fees. I could see if you had blocked their access to their garage. But, to their backyard? And they won't help maintain the driveway? Give me a break. Sounds like folks who are used to getting their way over everything and don't like it when someone tells them no.

Is this driveway paved? And the access to their backyard, was that paved or gravel? What do the local ordinances say about parking in areas that are NOT driveways?

[woodyga]

Ginny I have told my attorney to ask for fees, and if the judge awards it to double his fee(ha ha ). Our driveway is gravel. I dont think there is any city ordinances against parking in your back yard as I have had the city inspectors over at our rental house for other reasons and he is aware of our situation with the neighbor. Like I said in previous post she has what used to be a screened in patio that was converted to a car port. This is where she wants to park her car and any of her guest to park in her yard beyond the carport which is also gravel. If she would have been a good neighbor about things we would still be sharing the driveway with her. But every time we just park a tire over the line on her property she was banging on the door demanding we remove it off her property.

Woody,

[woodyga]

Question?

Would It be inappropriate to post a link here to my suit against us with the names blacked out so that the experts could see what it really is about.

Woody