Neighbors are claiming easement rights, but nothing is on record

[davids78bronco]

What is the name of your state (only U.S. law)? Oregon

We own .95 acres. Of that, there is a 28 x 175ft driveway from the city street, then my property spreads East for another 240 feet. We have neighbors that have been using this for years, but we want to put up a fence... we're tired of them using our property, despite that we bought the house 3yrs ago. Plus, they have friends and family that drive through several times a day. Last summer, we had a new property survey done. Time hasn't allowed us to continue with the fence plans until this year, when we have decided that we've had enough of this. My wife has talked to employees in several departments within our city office, and no one finds anything on record. Even a lawyer we had hired (but lost, because the firm represented the neighbors 25yrs ago) didn't find anything on court records, or on property, deed and title records.

We HAVE been told by the City that we're allowed to put up a rope across our driveway, and had been confirmed by our previous lawyer. Of course, I get a letter from the neighbor's lawyer stating that it's considered unlawful for me to impede their access through OUR property to their house.

It should be known, that the neighbors own three, .25 acre lots. The lot with their house is landlocked. However, their two adjoining lots provide, and have had, an easement to another city street, yet they absolutely refuse to use it. I've been video taping their trespassing as often as I can catch them. And within the last couple days, their adult children (who, apparently, live with them, now) have actually started increasing their speed through here, as well as encroaching even further on our property.

At this moment, we're waiting for a callback from a second law firm, to see if they can represent us, or not. Until then, I'll be continuing to videotape their trespassing. And reading the letter again, there is a line that states " You should be aware that [said neighbor] have well established easement right to use that access, notwithstanding the fact that such rights do not appear of record" - word for word, letter for letter, is how that line reads.

This is, mostly, to vent about my situation, but I am curious if there are any real estate lawyers that read this forum, and are well familiar with Oregon's laws, to confirm, or correct, my belief that I have every right to not only put up my fence, but to charge them with trespassing.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[justalayman]

If you are absolutely positive there is no easement of record, anywhere, the only other possibility would be they are claiming a prescriptive easement. Without knowing if the original use was permissive or adverse and how long they have been using the drive, it is impossible to determine if that is a valid claim.



If you are sure there is no written easement, you have a right to block the passage. Their response would be to sue for a prescriptive easement if that is the basis of their claim and they wish to enforce it.

 

[davids78bronco]

They claim to have been using this for the last 30 years, so I'm guessing I may be out of luck, even after all this. But with nothing on record with the courts, the city or the county, and no letter supporting their claim to use it, I still want to fight this.

Currently, I'll be placing a vehicle I don't drive, elsewhere on my property, blocking the access to their house, by way of our property. They still have full use of their own access, but for whatever reason, refuse to use it. I'll be waiting for them to call the cops, claiming I'm blocking access to their home - which I'm not

What I'm trying to avoid, is me having to file a claim with the court, denying them access to/on/through property, and having to pay for everything. As it is, the City, as well as our previous lawyer, states I can proceed with putting up my fence, but I don't want to do that, and have them wait until I'm done with the fence THEN they produce whatever claim they have with the court about giving them easement rights

Until I see/read otherwise, I fully believe I'm right about this, and they do NOT have any rights to my property whatsoever

 

[justalayman]

davids78bronco;2651805]They claim to have been using this for the last 30 years, so I'm guessing I may be out of luck, even after all this. But with nothing on record with the courts, the city or the county, and no letter supporting their claim to use it, I still want to fight this.

then you need to determine if the use was permissive (defeats the claim) or adverse. Before deciding you want to fight this, speak with your attorney about costs. This can get quite expensive and it can take a very long time to resolve.

Currently, I'll be placing a vehicle I don't drive, elsewhere on my property, blocking the access to their house, by way of our property. They still have full use of their own access, but for whatever reason, refuse to use it. I'll be waiting for them to call the cops, claiming I'm blocking access to their home - which I'm not

the cops should refuse to get involved and tell the neighbors to go to court if they want to make a claim.

Until I see/read otherwise, I fully believe I'm right about this, and they do NOT have any rights to my property whatsoever

with no written easement, you are more correct than you realize. While they may have a valid claim to a prescriptive easement, they have no lawful right to demand the use of it until a court acknowledges their right to the claim.

 

[davids78bronco]

with no written easement, you are more correct than you realize. While they may have a valid claim to a prescriptive easement, they have no lawful right to demand the use of it until a court acknowledges their right to the claim.

And this is what I'm trying to initiate. That they file a claim with the court, and I can go in and defend my reason/belief for my full ownership

I've made two calls so far, about the trespassing. The first officer, a Det. ____, offered to inform the neighbors about their trespassing, and said the next time we called, it would result in an arrest, and this was after we explained the situation, about their claim, no paperwork, no records on file. Second officer refused to come out

I've done a quick research on the types of easements you mentioned, and while I think I understand, I wonder if you'd be willing to simplify them for me, regarding the prescriptive, adverse and permissive

 

[justalayman]

a prescriptive easement is simply a claim that accrues through the use of another's property, adversely, for a prescribed (by the laws of the state involved) period of time. To have it enforced or legally recognized, the claimant has to sue and have the courts acknowledge the right. From that point on, it becomes the claimants legal right to use that easement, if the suit was successful of course.


adverse; contrary to the owners intent

permissive; by permission

 

[davids78bronco]

Ok, that's what I thought I was reading. Thanks

I guess what gets me is, if they DO have some papework, that it's with the previous owner (who died before we bought it, and it was her son who was selling the property), therefore is null and void, with us signing as the new owners, yet they refuse to acknowledge that.

It has since moved from an argument with the neighbor about this, to fighting for my rights as a homeowner. Neighbor, and their lawyer, are trying to bully me, and I won't have it

More questions about this matter ... Assume the following hypothetical scenario (I'll ask our next lawyer about this, later, but wanted to throw this out while I was thinking about it) - I proceed with the installation of my fence within 30 days of placing my vehicle elsewhere on my property. Assume/expect neighbor to call the police, and they are instructed to file a claim in court. They do, and I get a letter, indicating me as the defendant. I call my lawyer about this. Does this mean the plaintiffs (our neighbors who filed the claim) would be paying for my lawyer's court fees?

 

[justalayman]

Does this mean the plaintiffs (our neighbors who filed the claim) would be paying for my lawyer's court fees?

No. You can ask for fees but if they believe they have a valid claim and this is not a frivolous action, there is a good chance you would not be awarded your legal fees.

I guess what gets me is, if they DO have some papework, that it's with the previous owner (who died before we bought it, and it was her son who was selling the property), therefore is null and void, with us signing as the new owners, yet they refuse to acknowledge that.

have you asked the son what that might be? That could be very important. Depending what it is, whatever rights it conveyed could run with the land, which means you would be bound by that as well. It all depends on what it is.

 

[davids78bronco]

New information - the law firm that was representing us, tells us that they represented our neighbors 25 yrs ago, when the neighbors had their deed modified, apparently granting them access through what is, now, our property. We're being sent the information

I'm still going to pursue this to have it terminated

 

[154NH773]

I'm still going to pursue this to have it terminated

As justalayman said:

Depending what it is, whatever rights it conveyed could run with the land, which means you would be bound by that as well. It all depends on what it is.

If you purchased the land containing an appurtenant easement, you will probably not be able to terminate it.
If there are documents showing an easement, which are not actually filed, it might bring their legality into question. See what the law firm produces and let us know.

 

[TigerD]

New information - the law firm that was representing us, tells us that they represented our neighbors 25 yrs ago, when the neighbors had their deed modified, apparently granting them access through what is, now, our property. We're being sent the information

I'm still going to pursue this to have it terminated

Get the information and see an attorney. You may also have a claim against person you purchased the property from for failing to disclose the easement.

DC

 

[davids78bronco]

I was finally able to talk to our potential new lawyer this afternoon, and briefly explained the situation. However, after the call, my wife further explained that in her last conversation with our previous lawyer's assistant, she, not in so many words, let it known that the firm did represent our neighbors about the easement, and filed it in their records, but apparently, never went further with it, to record it with the county. IE, the claim never left the law firm's office. Which could very well explain why it never showed up on any records

Right now, until we can meet with our potential new lawyer, I'm remaining cautiously optimistic. My call with the lawyer was lightly entertaining. After I explained what happened with the previous lawyers, his reaction was similar to what you'd hear a close friend react with. A "You've gotta be kiddin me" kind of reply. I think I'm going to like this guy. Still ... cautiously optimistic. But thanks for the continued help and suggestions, it's helping me learn more about this, so that I'm not completely reliant on my lawyer

 

[Kiawah]

But it still nets down to, there is a landlocked piece of property, that will need to have it's access resolved. And unfortunately, an easement on your land appears to be the most logical solution.

I'd do some homework to understand land values, so you're prepared to talk about what is a reasonable reimbursement is for that easement.....should it ultimately come down to that (or sell it outright to them).

 

[davids78bronco]

Actually, no, it's not the most logical solution. The neighbors own two other parcels of land, that adjoin a different city street. They have had their own easement since they bought their house, and long before they stole from, now, me.

I'm not selling anything to them, and I'm not going to allow them to continue with this unacceptable behavior any longer than I have too

 

[Dave1952]

My Advice

Sorry but I would not advise you to attempt to deny them access to this right of way by blocking it, at present. It certainly sounds as if they have strong reason to believe that they have an easement. You know that they have been using this easement for 30 yrs. You have been told that such easement documents have been drawn up and signed.
Time to call in the pros. Did you buy Title Insurance? I bet you did. This is their problem. Call them on Monday. You may wish to have your attorney negotiate with the insurance company if the insurers can not get the title straightened out to your satisfaction

Good luck