Will being a Good Neighbor constitute an Easement?

[Sebastopol]

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

I have 7 acres of property. The neighbor to the north has inherited property that is to the south. He has been walking and driving through my field as an access between his two properties. As a good neighbor, I have not stopped him from doing this. He does have another option, but not as convenient. I don't mind him going through the field; however, I am afraid that he may someday claim an easement, especially if I go to sell the property. Please advise.What is the name of your state (only U.S. law)?

 

[drewguy]

If you give him permission he cannot claim adverse possession or a prescriptive easement, either of which can be claimed only if the use is "hostile"--i.e., without your permission.

You could send him a letter (certified, return receipt) giving him permission that you may revoke at any time. Of course, tell him why you're doing this and that you don't currently intend to revoke permission, but you do retain the right.

 

[robo94553]

Don't give up your property rights

Drewguy has good advice, but I would go one step farther. Don't just send your neighbor a certified letter allowing him access across your property. Some day he or whoever buys his property will claim they never got the letter. A certified letter just verifies that the post office delivered a letter. The envelope could be empty or it could be from Publishers Clearinghouse. If you want to allow your neighbor access to your property then you both should sign a letter of agreement. It will be hard for him to deny that he signed the letter at some later date. Put a sunset clause in the agreement, something like it is in effect for 4 years then expires. In California if you don't object within five years of someone using your property, then they have the legal right to your property, forever. Don't be the nice guy. It will come back to bite you in the end.

 

[154NH773]

A certified letter just verifies that the post office delivered a letter. The envelope could be empty or it could be from Publishers Clearinghouse

I may be wrong legally, but I believe a Certified Return Receipt letter must be signed for by the recipient, and if the receipt was presented to a court with a copy of the original letter, would provide evidence to support a claim you had indeed sent such a letter.

That being said, it would naturally be much better if you had a signed agreement as robo suggested.

 

[drewguy]

While a certified letter has to be signed for, it certainly is possible that you didn't include the actual letter in the envelope--it could be a birthday card. That said, it may be tough to deny receiving the letter--plus it's giving of permission, not accepting of permission, that matters.

As for agreement, another approach would be simply to have him acknowledge receipt of the letter by returning it to you with his signature on the letter itself (or a copy of it).

 

[Sebastopol]

I appreciate the info. You mention that use for five years can constitute ownership in California. I thought that was only if that person paid the property tax as well?

 

[robo94553]

I was not clear, sorry

I was not clear when I said after five years he has the right to your property. There is a difference between use and ownership. After five years of unobjected to use of an easement through your property, your neighbor can now claim he has a prescriptive easement through your property and use that easement forever. Also, the prescriptive easement will transfer to the new owner if your neighbor decides to sell his property.

On the other hand if you basically abandon your property and don't pay the taxes for at least five years, then someone can come in and pay the taxes and now have legal ownership of the property. Taking ownership this way rarely happens.

I am not a lawyer, but from the few legal cases I have been a party to I have come to realize that the better you document things the better off you are in court. And if you have things well documented then you reduce the chances that you will ever end up in court.

I have been researching this very issue lately. I am the one who is asserting my prescriptive easement rights for an easement that has been in use for over fifty years now, but the property owner is now blocking my use of the easement. What is interesting about the situation is that we purchased our property from the people who now are claiming we have no right to the easement that they themselves used for 30+ years.

Good luck, and as I said don't be the nice guy. Be the prudent guy. You are the only one with anything to loose in this situation.

 

[Mrs Bridges]

File a Document with the County Registry of Deeds?

What about the OP filing a document with his County Registry of Deeds, and having it cross-referenced with the deeds of all the three properties concerned (his, and the two parcels now owned by his neighbor). There would probably be a filing fee, but it would be worth it. Also, although perhaps better if the neighbor would sign this document of permission, it may not be necessary. It would serve as official notice to the world that the traversing of his property was definitely done by permission.