Distinction between granted rights & permissive use

Distinction between deeded rights & permissive use

What is the name of your state? Maine

I used to hike and cross-country ski across the small backyard and driveway of my neighbor. She was a close family friend before she was a neighbor. However, now that she has died, and her property has been sold to new people, I no longer do this. I think it would be rude and cheeky if I did continue to do it, not to mention trespass.

This neighbor had a deeded right of way across my property, which was granted to her by my parents when they owned my property. Because she was a close family friend, my parents gave her permission to do things with our property which were outside the scope of the deeded rights of ingress egress. However, she always secured my parents' permission first before she did anything other than ingress egress.

Now there are new owners. Apparently my former neighbor's son-in-law told the prospective buyers, who later became the new owners, that they had the right to do everything on our property that my parents allowed our family friend to do. My position is that there is a distinction between the deeded rights which pass with the land (whether I like it or not), and the permissive rights which were specifically sought by my former neighbor, and granted to her by my parents on a case by case basis.

Also, the fact that my former neighbor always asked permission to do activities which were outside the scope of the deed, implies to me that my parents always had the right to refuse her request(s) if they so chose.

I know that my new neighbors have the the deeded rights of ingress egress, but do they have the right to do all the other things which my former neighbor secured permission from my parents to do? My mother, one of the original grantors of the right of way is still alive and has written an affidavit explaining all this.

Thanks for your help.

Mrs Bridges said:

What is the name of your state? Maine

I used to hike and cross-country ski across the small backyard and driveway of my neighbor. She was a close family friend before she was a neighbor. However, now that she has died, and her property has been sold to new people, I no longer do this. I think it would be rude and cheeky if I did continue to do it, not to mention trespass.

This neighbor had a deeded right of way across my property, which was granted to her by my parents when they owned my property. Because she was a close family friend, my parents gave her permission to do things with our property which were outside the scope of the deeded rights of ingress egress. However, she always secured my parents' permission first before she did anything other than ingress egress.

Now there are new owners. Apparently my former neighbor's son-in-law told the prospective buyers, who later became the new owners, that they had the right to do everything on our property that my parents allowed our family friend to do. My position is that there is a distinction between the deeded rights which pass with the land (whether I like it or not), and the permissive rights which were specifically sought by my former neighbor, and granted to her by my parents on a case by case basis.

Also, the fact that my former neighbor always asked permission to do activities which were outside the scope of the deed, implies to me that my parents always had the right to refuse her request(s) if they so chose.

I know that my new neighbors have the the deeded rights of ingress egress, but do they have the right to do all the other things which my former neighbor secured permission from my parents to do? My mother, one of the original grantors of the right of way is still alive and has written an affidavit explaining all this.

Thanks for your help.

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Tell us EXACTLY what the deed easements say. Otherwise no one can answer any of your questions.

I know that my new neighbors have the the deeded rights of ingress egress, but do they have the right to do all the other things which my former neighbor secured permission from my parents to do? My mother, one of the original grantors of the right of way is still alive and has written an affidavit explaining all this.

This is exactly what their deed says about the right of way:
"Also granting a right of way to the wharf on the shore of the Kennebec River for the purpose of ingress or egress to the wharf to maintain a float, over other land now or formerly of John Doe and Jane Doe (more particularly described as Lot 9, on Map 99, Wharf Area, Property Map, City of Bath, prepared by James W. Sewall Co., Old Town, Maine, on file in the Assessors' office, City of Bath, Maine."

The former neighbors asked my parents permission to store items on our land, outside of the path of the right of way, and my parents said yes. Because my parents said yes to storage, am I obligated to allow the new neighbors storage rights as well? Or do the new neighbors have to ask my permission each time they want to do something like that, with me being legally free to refuse a request for storage if I so choose?

Thank you.

Mrs. Bridges, if you will refer to your other two posts, you will see that your questions have been answered by seniorjudge in those when he posted:

The rest of it is forbidden unless you give permission. The ROW is for ingress/egress only. Not for parties, parking or persnipity.

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still applies.

Bottom line, the neighbors are afforded what is allowed by the deed, nothing more. Even if you permit the neighbors to do somthing today doesn't mean you cannot stop them from doing it tomorrow.

From the extent of the suituation presented in your posts, you would be best served by an attorney to direct the neighbors what the limitations of the easement are and what you will or will not allow. Then enforce it lest you may (eventually) lose it to prescriptive easement.

Thank you. Your answer has been the most helpful to date.

The problem has been the definition of the terms "ingress/egress" and whether or not that definition includes launching a float, because (the argument is) you are still "ingressing", only you are bringing a float with you. However, the launch point is not on the pathway to the wharf, which is the ROW specified in the deed.

The next problem has been the definition of the phrase "to maintain a float", and whether maintain means simply the right to have a float attached to the wharf, and nothing more -- or whether "to maintain a float" means storage, launching, and retrieval.

When I recently approached the lawyer for the other side (a former classmate of mine) to see if he would help mediate an understanding between my neighbor and me, all he would do was to repeat the exact wording of the deed to me, without addressing whether it included launching and storage or not. Apparently since then, he has told my neighbor that it definitely does not include storage. I don't know what, if anything, he said about launching, or bringing heavy machinery onto my property.

In my opinion, the deed is specific about what is allowed -- passage to and from the wharf in order to get to the float, and nothing more. So I can't understand how anyone could possibly construe that the right of way included launching, heavy machinery, or storage.

Thanks again.

I would suspect a judge would see it as as long as they stay on the ROW and do not damage the ROW, they would be ok bringing a float across but definately not storing it there.

If they damage the ROW, the would be responsible for repair. You may be able to stop them from ever damaging it again due to the fact they would be oeveburdening the easement. The should not be allowed to do anything but cross the ROW. It is a means to get from point A to point B. They cannot picnic on it, they cannot store anything on it and they cannot use it as a maintainance area. Maintain can mean as simply put as "keep" as in "maintaining a presence" and I suspect this was the intent.

If the neighbors wander off the ROW, they are trespassing, which means they cannot launch the float in the manner you described.

Since your mom is still around, ask her what the intent was for anything of concern. If it gets down to it she is the only one involved in the origianl deal. Unless there is specific allowances for the neighbors to do something and your mom states that it was not intended to be used in that manner, stop them. If they want to argue it, they will need to take you to court. So you take in the only surviving person with you and she explains to the judge what the actual intent was. Without specific wording allowing what the neighbors want, you should prevail.

So back to my advice; go get yourself an attorney to advise you. Send a cease and desist letter to the neighbors insisting they stop whatever it is you believe they should not be doing and hang on for the ride.

Thank you! Your comments have been very helpful. In fact, we have retained an attorney to help us get this sorted out -- not only with regard to our current neighbors, but also with an eye to the future if these neighbors should sell to someone else. We're here forever, and don't want to go through this each time the dominant estate changes hands.

The difficulty my husband and I have had (and I suspect others on this forum as well) is in finding out what the law says, and what the exact definition is of some of the terms used. It seems to me that's where any of us have to start. The research I have done on the Internet has been a real eye-opener. It is amazing to me how many people are mis-informed about what a right-of-way is.

I found an excellent article from the 'Lectric Law Library's stacks on "Trespass, Adverse Possession & Easements" http://www.lectlaw.com/files/lat06.htm
While an excellent starting point, it did not define the terms ingress/egress or maintain. The Interent has plenty of examples about ROW roads, but only a handful involving water access & dockage.

I was hoping to get a consensus on my questions, so thank you for that. What my husband and I have dreaded is asking 3 different lawyers what the law is -- and getting 3 different answers.

Thanks again.