Prescriptive Rights

[texastimber427]

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

Hi All,

What are the general thoughts on somebody successfully asserting a prescriptive right to cross somebody else's property?

Situation:
(1) Long short-cut . . . 2,400'
(2) New neighbor is asserting the short-cut . . . only been there 4 months
(3) Previous owner was occasionally using the short-cut, with permission
(4) Previous owner lived there 8 years, directly previous owner rented it out (for 5 years) and the third previous owners are dead
(5) Realtor told the new owner that the short-cut was their "right-of-way". That it was "grandfathered".
(6) New neighbor has a deeded entrance, in another direction
(7) New neighbor is representing the short-cut as his "driveway"
(8) No court orders prescribing any access rights is known to exist or are being referenced
(9) Neighbors talk about using "the road" for years . . . but really couldn't have . . . it was overgrown four years ago, when we cleared it . . . and you could have only really used it if you didn't like your truck.

What is the chance of successfully asserting a prescriptive right using the "Realtor told me" argument? Do the courts usually side with the ones claiming the prescriptive rights?

With appreciation,

Owner of the lands being crossed

 

[154NH773]

I would tell you (as I tell everyone) from my experience; court is a crapshoot.

Having said that; you must document everthing necessary to defeat the claim. Get affidavits from all the previous users of the "short cut". Document with photos, etc the impassability of the road prior to your clearing. Get documents showing his other access (surveys, tax maps, etc.)

The fact that a realtor told him he had a "grandfathered" access has no bearing on a court claim. He can sue the realtor if he loses his case with you in court, but it has nothing to do with you.

Are you currently served, or is he just making a verbal claim to you? Do you have a lawyer? Better get one.

 

[FlyingRon]

Note the "new neighbor" doesn't get rights of longevity just because a previous owner had tresspassed.

1. Survey the property (and have a title search done if you wish to make sure there isn't any deeded ROW or easement).

2. Send a certified letter RRR denying access.

3. Block the property.

4. Call the police if there is tresspass

I don't agree with 154, the law is on your side on this. Furthermore, if he wants to assert rights to your property the onus is on him to file this in court.

The "realtor told me" has no legal bearing whatsoever.

 

[Mass_Shyster]

(3) Previous owner was occasionally using the short-cut, with permission

The permissive use by the previous owner should defeat any claim of a prescriptive easement, as continuous, adverse use for 20 years is needed for the claim.

You should seek legal counsel. I suspect the first step is to notify the neighbor, in writing (certified, return receipt requested) that he is forbidden from trespassing on your land.

A prescriptive easement is essentially a type of adverse possession, resulting in the right to use the property of another rather than title to the property. Blue Ridge Poultry & Egg Co. v. Clark, 211 Va. 139, 176 S.E.2d 323 (1970); Craig v. Kennedy, 202 Va. 654, 657, 119 S.E.2d 320, 323 (1961) (“To acquire an easement by prescription, use of the ditch must be open, continuous and adverse for a period of at least twenty years.”). A Virginia Circuit Court explained prescriptive easements as follows:
Where a way has been used openly, uninterruptedly, continuously, and exclusively for a period of more than 20 years, the origin of the way not being shown, it is presumed that an easement was granted from the long-ago acquiescence of the parties upon whose land the [way] is located. The presumption only arises only upon clear proof of these elements[, but] once the presumption [is] triggered, … it is up to the owner of the servient estate to show that the use was permissive only, or otherwise not under a claim of right.

 

[Mass_Shyster]

Note the "new neighbor" doesn't get rights of longevity just because a previous owner had tresspassed.

Actually, they may. It's called "tacking", and VA recognizes it.

 

[justalayman]

I don't see much chance of the trespasser prevailing on court and unless/until he does sue for the use of the lane once you block it off, it doesn't matter.

So, block the lane. Send the guy a letter telling him he is not allowed to use the lane and any use will be considered a trespass. If he trespasses, call the police.

If the guy wants to attempt to make a claim to the lane, he will have to file suit and he will have to prove he has a legal claim to the lane.

If you can, get in touch with the prior occupants and get a letter from them stating they used the lane based on your permission to do so. That would kill any claim the guy has.

 

[154NH773]

I don't agree with 154, the law is on your side on this. Furthermore, if he wants to assert rights to your property the onus is on him to file this in court.

Don't meant to get touchy, but I didn't say the law wasn't on the OP's side; just that he should prepare himself if it goes to court. Without a good defense he could lose.

From Stevef:

it is up to the owner of the servient estate to show that the use was permissive only, or otherwise not under a claim of right.

It's also unclear from the OP's post whether a case has been filed already, or just a threat of a court case. Therefore; my question.

Are you currently served, or is he just making a verbal claim to you?

Just because you are right doesn't mean you will win, you have to present a good case refuting his claims.