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Easement....Driveway Problems

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duomaxwell

Junior Member
What is the name of your state? New Jersey

We just bought a house and we do have a shared driveway that is 95% on our side. We have done all property and title searches and all have came up with no easements saying that there was an easement.
We would like to put up a fence on the back section of our house and now we can't because we just got a letter saying there is a 25 year easement which cannont be disturbed.

We already do have a permit for the fence and wouldnt someting that have shown up in the title search?
We have already tried to contact our lawyer but he is out untill Monday. Any advice would help
 
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justalayman

justalayman

Senior Member
duomaxwell said:
What is the name of your state? New Jersey

We just bought a house and we do have a shared driveway that is 95% on our side. We have done all property and title searches and all have came up with no easements saying that there was an easement.
We would like to put up a fence on the back section of our house and now we can't because we just got a letter saying there is a 25 year easement which cannont be disturbed.

We already do have a permit for the fence and wouldnt someting that have shown up in the title search?
We have already tried to contact our lawyer but he is out untill Monday. Any advice would help
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It seems that it should have shown up but stranger things have happened.

Who sent you the letter and why would their be a 25 year easement. Are you sure they weren't refferring to the possibility of a prescriptive easement or an adverse possession (probably not this) involved?
 
D

duomaxwell

Junior Member
justalayman said:
It seems that it should have shown up but stranger things have happened.

Who sent you the letter and why would their be a 25 year easement. Are you sure they weren't refferring to the possibility of a prescriptive easement or an adverse possession (probably not this) involved?
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Our neighbor's lawyer sent us a letter saying that they have been using it for 25 years. Our letter doesnt say anything about either of those easements.
 
justalayman

justalayman

Senior Member
duomaxwell said:
Our neighbor's lawyer sent us a letter saying that they have been using it for 25 years. Our letter doesnt say anything about either of those easements.
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It sounds as if they are speaking of a prescriptive easement. That is where somebody uses anothers property for a required minimum period of time and then can claim continued use of that property forever more.

There are a couple of things that make a difference.
Did the neighbors actually use part of your property? Did it exceed 20 years? (yes I did notice the claim of 25 in your post but is it true) Did you know it was your property? Did you give them permission to use your property?

If they do have a claim of prescriptive easement, you may still require them to go to court to have it enforced.

Having a sitdown with a local attorney will be your best bet in getting the correct anser to your specific situation
 
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duomaxwell

Junior Member
Yes the neighbors use my property every day as their driveway to get to their backyard. Our lots are the same...45x140. I am not sure if it exceed 20 year because we have only been here for 1 month. We know its our property because of the survey and no we didn't give them permission.
 
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lwpat

Senior Member
Do they have other access? It doesn't matter whether you gave them premission, it is what the previous property owner did. It sounds like they have either a prescriptive easement or an easement by necessity. If this was not disclosed, you may have a claim against the previous owner. Either way, looks like you may have a lawsuit on your hands. Best to try to work out some sort of compromise and get it on paper.
 
justalayman

justalayman

Senior Member
lwpat said:
Do they have other access? It doesn't matter whether you gave them premission, it is what the previous property owner did. It sounds like they have either a prescriptive easement or an easement by necessity. If this was not disclosed, you may have a claim against the previous owner. Either way, looks like you may have a lawsuit on your hands. Best to try to work out some sort of compromise and get it on paper.
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Iwpat: granted, in this case the OP's granting of permission is irrelevant but what may be relevant is ; did the former owners give permission. Why you may ask? Because granting permission prevents a claim of prescriptive easement. If the former owner knowingly permitted the neighbors to use the access, the permission can simply be revoked, no prescriptive easement.

A prescriptive easement arises if someone uses part of your property with your permission. It can also occur when you use part of your neighbor's property without approval. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway.

Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use.

The legal test to acquire a prescriptive easement of another owner is that the use must be open, not secret, notorious, clearly observable, hostile, without the landowner's consent and continuous without interruption for the number of years required by state law. For example, the minimum hostile use varies from 5 years in California to 30 years in Texas.

The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land.

To perfect a legal prescriptive easement, the hostile user must bring a quiet title lawsuit against the property owner and prove all the open, notorious, hostile and continuous use requirements.

If, after purchasing your property, you suspect that a neighbor is using land with belongs to you, that person or neighbor being a "hostile user", you can choose to grant permission to your neighbor thus preventing a permanent prescriptive easement from arising. Permission should be documented such as by a letter to the hostile user.
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An easement by necessity may or may not come into play here. Info required is; why do the neighbors need to get to the back yard with their vehicles and, of course, the question you asked, is there any other access. Generally an easement by necessity wouldn't fly here because the neighbors can get to their property, they just cannot get to the back yard with their vehicles. That often falls under the exemption of either "So what" or " tough luck". As well, if the neighbors want to argue the point, they will need to go to court and convince the judge of the necessity as well.

If the neighbors want to have this "easement" enforced, they will have to go to court to do so. The OP does not have to simply roll over and accept it.
 
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duomaxwell

Junior Member
They do have other access on the other side of their house. We our not sure if the first owner of the house gave them permission and we never will know. The house was sold at an auction because of tax reasons and was fixed up after that. And we know the person we bought it from says that they did'nt either. So we can't really answer that question.
We are just really upset because we do lose alot of property and the title search/insurance came up with nothing...
We will be incontact with our lawyer on monday, We really do appreciate all the help.
 
justalayman

justalayman

Senior Member
duomaxwell said:
They do have other access on the other side of their house. We our not sure if the first owner of the house gave them permission and we never will know. The house was sold at an auction because of tax reasons and was fixed up after that. And we know the person we bought it from says that they did'nt either. So we can't really answer that question.
We are just really upset because we do lose alot of property and the title search/insurance came up with nothing...
We will be incontact with our lawyer on monday, We really do appreciate all the help.
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Until the neighbor goes to court to have something enforced, it never will show up on any title report. Only after it is granted will it show up as an encroachment.

It might be worth the trouble to try to hunt up the old owners. It may mean the difference between winning and losing.

Good luck.
 
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lwpat

Senior Member
It might be worth the trouble to try to hunt up the old owners.
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I agree. I also agree with the rest of your post and that was the gist of my question, to elicit more information. Since they have other access, I would notify them that all they have is a license to use the driveway and that you are revoking that license. Then erect the fence. However, be prepared for the legal expenses if they decide to fight. The question is how bad does their use of the driveway bother you? One way to settle the issue may be to consider an easement in gross since they are probably elderly. This means they would agree the easement is personal to them and cannot be transferred to any furture owners. Another would be to agree to share the cost of any improvements necessary to improve their other access in return for closing off this drive.

Bottom line is that you can close off the drive and they can take you to court. If that happens, both of you will spend a lot in legal fees and it will take several years to sort it all out. If they can prove they have been using the driveway for the 25 years, they will probably win. The driveway is now in your court, so to speak.
 
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ylen13

Guest
basically ignore the letter, letter is not legally binding on you yet. Put in the fence and see if you get sued or not.
 
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