Walkway Easement for Backyard Neighbors and Ownership Boundaries Issues

[JHBK]

We live in Massachusetts and own a walkway next to our house that is also a written as an easement to our backyard neighbors' as their sole access to their home. I believe this was included as language as in our property deed or something similar. The language of the easement is not well defined at all (it was likely written over 150 years ago), basically just saying that the back yard neighbors have a right to access, and that we must keep 3 feet cleared for them to get by at all times (out of a 5 foot walkway).

Now every year our neighbors do not ask, but just tell us they are going to patch this walkway cracks with tar. I've look at this walkway every year and it does not need patching. I believe they patch it just to exert some control over this one walkway for their own self assurance. However, I'm also concerned that if they keep doing this they're going to make a play that at some point they have been maintaining it and thus should fall in their control. Is there any ability for them to take the ownership of this walkway away from us? Also are there any good ways to stop them from doing things like this without asking for our permission first (e.g., cease and desist)?

The last tricky bit is that one of our back yard neighbors is legally blind (i.e., she can see just not terribly well). I'm all for in supporting her, but they tend to be very petty neighbors who tend to overstep their bounds with us (like the above). Ideally I would like to solve this in the most neighbor friendly way, but I also want to protect what we own.

Thanks.

 

[FarmerJ]

Do you have a photo graphic record (with dates ) that shows the walkway does not need this work ?
if the easement is only worded to allow for passage thru that area then remind them via registered return receipt mail ( keep a copy for your records ) that unless they are willing to prove the wording of the easement allows them more rights than just the right to use it was a means to walk over it then they are not to alter it , attempt to maintain it, or do any thing else but use it as the easement allows with out your written consent and doing any type un authorized changes to your property is creating damage and they might wish to consult with their Attorney to learn what they risk when damaging another persons property. If by chance they refuse to sign and its sent back to you then leave it sealed in original envelope and send whole new copy via two methods , one is confirmed mail delivery and a lower cost second is certificate of mailing ( that one is not certified mail which is different) Both of those mailing methods would give you receipts that show to whom you sent mail. again keep copies of every thing just in case some day later on you must prove that you had addressed this issue.

 

[JHBK]

Thanks that's a good idea. To answer your question, I do have sometime stamped pictures archived from last year. The problem is that repair is completely subjective. All the cracks are extremely minor with no changes in leveling and all are less than 1/4 inch with most being less than 1/8. They have more unleveled ground from a brick walkway (dirt set) section on their own property than what is on mine.

Also, is my fear that they can attempt to claim it irrational or extreme? I'm not sure where I heard this before, but I thought I've heard cases where neighbors have made claims to property they were maintaining after some number of years due to owner's neglect.

 

[OK-LL]

Also, is my fear that they can attempt to claim it irrational or extreme? I'm not sure where I heard this before, but I thought I've heard cases where neighbors have made claims to property they were maintaining after some number of years due to owner's neglect.

You are talking about the backyard neighbor acquiring your property underlying the easement based on their maintenance of that easement area. You are probably thinking of the theory of "adverse possession", which can transfer property from one owner to another based on meeting certain criteria over a period of time; one such criteria is "open and obvious" and activities such as maintenance will fall into that criteria. BUT there are a number of criteria which must be met, and typically first and foremost is the criteria that the possession be "adverse" or against the owner's will. Since a (written) easement exists, the use & possession of the easement area is permissive so a claim for adverse possession will likely fail if it is based only on the maintenance issue.

 

[justalayman]

The last tricky bit is that one of our back yard neighbors is legally blind (i.e., she can see just not terribly well)

so, close you eyes and walk the walkway. See if you trip on a portion that is raised 1/4 inch. It is a trip hazard for a person that cannot see it.



Given this is in Massachusetts, it is also prudent to seal such cracks to avoid water settling in them and being subjected to freezing which will exacerbate the issue.


so, do you want them to be injured on your walkway because it is in disrepair and sue you or do you want to make sure they have a safe journey across your property?

 

[JHBK]

You are talking about the backyard neighbor acquiring your property underlying the easement based on their maintenance of that easement area. You are probably thinking of the theory of "adverse possession", which can transfer property from one owner to another based on meeting certain criteria over a period of time; one such criteria is "open and obvious" and activities such as maintenance will fall into that criteria. BUT there are a number of criteria which must be met, and typically first and foremost is the criteria that the possession be "adverse" or against the owner's will. Since a (written) easement exists, the use & possession of the easement area is permissive so a claim for adverse possession will likely fail if it is based only on the maintenance issue.

Thanks, that is exactly what I'm looking for. I am ultimately worried that they trying to prove something against us with this activity. Though as another poster brings the possibility for being responsible if a neighbor injuries themselves, which I agree I also cannot ignore here.

 

[JHBK]

so, close you eyes and walk the walkway. See if you trip on a portion that is raised 1/4 inch. It is a trip hazard for a person that cannot see it.

It's not raised vertically, just horizontally. They actually have bigger vertical impairments on their own property that they're ignoring. Also by adding the pitch or tar they're actually adding more of vertical impairment to the walkway than the actual cracks are.

Given this is in Massachusetts, it is also prudent to seal such cracks to avoid water settling in them and being subjected to freezing which will exacerbate the issue.

Not that I think this is inherently bad. But the cracks are very small and existed well before we moved in. They started the trend of yearly repair work only started a year or so after we moved in, which means they never did it with the previous owners.

so, do you want them to be injured on your walkway because it is in disrepair and sue you or do you want to make sure they have a safe journey across your property?

I totally agree, I'm actually mostly fine with them doing it, but I wanted to make sure they don't have a longer term nefarious motivation.

 

[justalayman]

It's not raised vertically, just horizontally. They actually have bigger vertical impairments on their own property that they're ignoring. Also by adding the pitch or tar they're actually adding more of vertical impairment to the walkway than the actual cracks are.

raised vertically? Raised means to move to a higher position. If you mean sideways movement, that would be lateral movement.


you are not liable for incidents that happen on their property. Just yours. If they are making the walk less safe, then I would stop them for that reason. If they are sealing cracks, I would make sure the material used does not show above the level of the walkway so as to avoid it making it more unsafe.

Not that I think this is inherently bad. But the cracks are very small and existed well before we moved in. They started the trend of yearly repair work only started a year or so after we moved in, which means they never did it with the previous owners.

ok but none the less, sealing cracks in a walkway do extend the useful life by reducing the amount of horizontal or vertical shift caused by freezing water.

I totally agree, I'm actually mostly fine with them doing it, but I wanted to make sure they don't have a longer term nefarious motivation.

since it is an easement, they cannot claim adverse possession since their use cannot be adverse as long as they are using it for the purposes defined in the grant.

 

[JHBK]

raised vertically? Raised means to move to a higher position. If you mean sideways movement, that would be lateral movement.

I was purposely being redundant for earlier reference. Thank you for the definition of raised, though it was quite unnecessary. I work in software where the terms vertical and horizontal are used to reference positional context, but I agree lateral is a better term here.

you are not liable for incidents that happen on their property. Just yours. If they are making the walk less safe, then I would stop them for that reason. If they are sealing cracks, I would make sure the material used does not show above the level of the walkway so as to avoid it making it more unsafe.

It's not terrible at the moment but every year they seem add a bit more, so perhaps it does need to be addressed.

ok but none the less, sealing cracks in a walkway do extend the useful life by reducing the amount of horizontal or vertical shift caused by freezing water.

Again I don't disagree here in essence. My main point is this behavior is fairly new to our ownership of the house, and the cracks they are repairing existed well before we took ownership, hence my initial worry that they were/are trying something sneaky.

since it is an easement, they cannot claim adverse possession since their use cannot be adverse as long as they are using it for the purposes defined in the grant.

Thanks, good to hear this.