update on attempted easement

[keh]

I posted a while back about the problems a distant neighbor of my daughter had with a person trying to force them into granting an easement. Didn't know all the details then but I asked daughter to get more details and so here are the circumstances:

About 12 years ago man bought 80 acres next to the 10 acres owned by the people I'll refer to as the gardeners, since they practice mostly organic gardening. Man asked gardeners if he could go across back of their lot to get to part of his property. His property has other road access, just not as convenient.
Gardners allowed his to do that, but after several years he decided to develop his property and started cutting trees and bulldozing a wider road. Gardners spent about 2k on lawyers fees(money well spent IMO) and now the road has a pipe across it and the culvert taken up by the county, which seems to have said the sight distance was not enough for a subdivision road. The gardners decided not to sue for damages, which probably just as well. You never know how a court case will turn out. Oh, man never offered money for any easement.
Moral of story, don't be TOO helpful to neighbors.

KEH

 

[Allan in NE]

Yep,

Had a deal (won't go into the details) kinda like that.

Sometimes ya just gotta yank back on the lead rope to get their attention and let 'em know who's runnin' what.

Let 'em walk on ya once and they think it is their "right" from then on, so ya got to stop the BS right up front.

Allan

 

[Lou]

My understanding is if you charge a small fee for The right to cross your property you protect yourself from the implied easment.

 

[Anonymous-0]

In Michigan you should bloch the access for at least a day to stop the attachment process.

 

[JDemaris]

$2000 money well spent?? Seems like $2000 wasted to me - unless the gardeners are getting reimbursed from the tresspasser.

If the gardners hold title to that property - all they had to do was block it. Once done - they don't need to prove their right to do so - they already own it. Legally, the burden would be on the tresspasser to prove his or her right to remove the blockage and cross someone else's property.

The issue with blocking property is doing so when you're not around to police it. If you blocked a portion of property you own but rarely visit - and then someone removes the blockage while you're elsewhere - then they could attempt to claim an adverse easement. Note - I said "attempt" since there's much more to it. In reality - to be truly adverse - you as the property owner must be aware of it. Adverse easements usually take place when someone goes against the property owner's wishes - openly - and gets away with it - for a long time.

 

[ArleninOr]

Same thing only it was an old lady that had hung onto her property after her husband had died.Housing projects all around people thought she had too much property so they started moving fences. $1000's of dollars later lady wins in court but people still think that they can do whatever they want on this property. She is 87years young and tougher than air dried oak.Lots of pictures of property from day one [1939] She still owns it and lives there. Will until the good lord takes her home. I take care of this farm for her and will until she says no more.

 

[Anonymous-0]

Yup......
And when it's relation, it opens up a whole new can of worms.......

 

[Walt Davies]

Six acres on the corner of my land was cut off years ago and given to a son who died of cancer and the hospital took the property as payment for their bill. My driveway cuts across the corner of the property and the last owner thought that they could kick me off of it. Didn't work I guess because they gave up and sold out the new neighbors don't care about it so my 130 year old driveway stays the same. I expect someday another new neighbor will come along and think he owns my drive too. I just set back and let them do all the work and when they give up I go back to just driving on my old driveway.
Walt

 

[JDemaris]

Maybe I'm missing something here - so correct me if I am. I find land law interesting - and have studied land laws and case law pretty closely over the years - mostly out of necessity.

You transfered title of a piece of property to someone else - starting with your son - correct?

Once you did so, you no longer had any legal rights to the property, correct?

You did so without retaining/reserving any sort of easement back to the parent-parcel of land that you own and live on.

Ever since, you've driven across property you don't own and claim a right to do so.

In New York as well as most other states you don't have a legal leg to stand on - unless . .

#1 you claim a "prescriptive easement" and for that, each state has strict rules and time-frames. Usually, you have to do it for 10 - 21 years.

#2 you claim a "appurtenant easement" and again, there are strict rules. This would be an easement created by court-order by a judge, and requires the parcel you live on to be legally landlocked.
These are not granted to provide convenience, only to alleviate the problems of landlocked parcel.


When you cross someones property, and they tell you to get off, and you don't - at that point you are trespassing. If you get charged, legally, the burden is on you to prove otherwise - the property owner only has to prove ownership.

So, as I said - maybe I'm missing a few facts here. Just because your family owned and used the driveway for 130 years - it means nothing legally. That's kind of like saying a farm - or house was in the family for 130 years - and therefore you can all use it forever - even if you sell it to someone esle? And, 130 years of use does not create any sort of easement since easements are not granted to owners of property - on that property.

 

[john *.?-!.* cub owner]

(quoted from post at 20:33:27 01/22/08) Maybe I'm missing something here .....

eal estate laws vary widely by state, so what is true in NY may not be elsewhere.

 

[Anonymous-0]

My easment troubles are in the hands of the lawyers. We moved from small claims court to circuit court this week and will see how bad the guy wants to pursue his claims if he has to go in front of a jury and tell his story. There have been so many court cases involving easments it is hard to tell how it will turn out.

 

[JDemaris]

I fully understand laws vary with states but they don't vary THAT much. Name me any one of the 50 states that automatically gives you perpetual rights to property after you sell it and deed it to someone else.

The United States uses English Common Law as it's legal backbone, and individual states "tune up" the law, but don't change it much. Common Law does not have to be written in Statutes.

No matter what state you live in - if you own land in "fee simple" and it's deeded to you, you retain rights to that property unless someone else proves otherwise in court - and NOT by hearsay.

Many property disputes arise from people tresspassing and just assuming they can do it - because they want to, because it's convenient, or because their family did it in the past, etc. I've had to defend my property rights many times and I get kind of tired of it. I buy property, get full title, pay taxes - and then have to deal with all the people that decide it's their God-given right to use it - just because . . . ?

In regard to the one situation that Walt Davies mentioned - I don't know the details. It's possible he is claiming an "easement by implication" - but that has strict requirements and must be proven in a court of law - by him - and NOT the property owner.
There is a similar situation near me right now. A farmer gave his son 5 acres in the corner of one of his fields. The son had just gotten married and put a new modular home on the 5 acres. Shortly after, the wife through the son out (he got drunk and beat her up), went to court and got the house and property. She now has a new boyfriend and owns the land and house. The farmer now has strangers living on the five acres and is no longer allowed to enter or cross the property. He does NOT get along with his ex-daughter-in-law. She fenced him out, he tore the fences down, and HE got arrested and found guilty of tresspass. She also got an order of protection from him and now - he can't even come within a certain distance of her house - not even while driving a tractor doing farmwork.

Here's a sampling of how states handle easements:

Alabama: the period of adverse use must be at least twenty (20) years.

Alaska: Common Law

Arizona: the period of adverse use must be at least ten (10) years. Arizona Code §12-521 through
528.

Arkansas: the period of adverse use must be at least seven (7) years. Arkansas Code §16-56-105;
18-11-102, 03; 18-60-212.

California: the period of adverse use must be at least five (5)years. The claimant of an easement by adverse possession must also pay the taxes due for the five
(5) year period if it has been separately assessed. California CC §1007.

Colorado: the period of adverse use must be at least eighteen (18) years. Colorado Code
§38-41-101, 108, 109.

Connecticut: the period of adverse use must be at least fifteen (15) years. Connecticut Code
§37-40; 47-25.

Delaware: the period of adverse use must be at least twenty (20) years. Delaware Code
§10-7901, 7902.

Florida: the period of adverse use must be at least twenty (20) years. Florida Code §95.16-.18.

Georgia: the period of adverse use must be at least seven (7) years for improved land and twenty
(20) years for wild land. Georgia Code §44-5-175; 44-9-1.

Hawaii: the period of adverse use must be at least twenty (20) years. Hawaii Code §657-31, 31.5.

Idaho: the period of adverse use must be at least five (5) years. Idaho Code §5-208 through 210.

Illinois: In Illinois, the period of adverse use must be at least twenty (20) years. This type of
easement does not arise if the owner of the servient estate posts a conspicuous notice on the real estate stating that the use of it is permitted and subject to his/her control.

Illinois Code
§735-5/13-122.

Indiana: the period of adverse use must be at least twenty (20) years. Indiana Code §32-5-1-1.

Iowa: the period of adverse use must be at least ten (10) years. The owner of the servient estate
may prevent the establishment of a prescriptive easement by serving written notice upon the
easement claimant within the ten (10) year period that he/she disputes the claim. Iowa Code
§564.1, 4-7.

Kansas: the period of adverse use must be at least fifteen (15) years. Kansas Code §60-503.

Kentucky: the period of adverse use must be at least seven (7) years if held under patent and
fifteen (15) years otherwise. Kentucky Code §413.050.

Louisiana: Louisiana CC §742.

Maine: the period of adverse use must be at least twenty (20) years. The owner of the servient
estate may prevent a prescriptive easement by giving written public notice that he/she objects to the easement. Maine T.14, §812.

Maryland: the period of adverse use must be at least twenty (20) years. Maryland Courts Art.
§5-103.

Massachusetts: the period of adverse use must be at least twenty (20) years. The owner of the
servient estate may prevent prescriptive easement by posting a conspicuous notice on the real
estate claimed as an easement which states the owner’s intent to prevent an acquisition of an
easement.

Massachusetts C. 187, §2-3.

Michigan: the period of adverse use must be at least fifteen (15) years. Michigan CLA §600.5801.

Minnesota: the period of adverse use must be at least fifteen (15) years. Minnesota Code §508.02;
541.01-.02.

Mississippi: the period of adverse use must be at least ten (10) years. Mississippi Code §15-1-7,
13.

Missouri: the period of adverse use must be at least ten (10) years. Missouri Code §516.010-.030.

Montana: the period of adverse use must be at least five (5) years. Montana Code §70-19-405.

Nebraska: the period of adverse use must be at least ten (10) years. Nebraska Code §25-202.
Nevada: the period of adverse use must be at least five (5) years. Nevada Code §11.070-.080.

New Hampshire: the period of adverse use must be at least twenty (20) years. New
Hampshire C. 508, §2.

New Jersey:the period of adverse use must be at least twenty (20) years. New Jersey Common
Law.

New Mexico: the period of adverse use must be at least ten (10) years. New Mexico Code §37-1-22.
New York: the period of adverse use must be at least ten (10) years. New York Real Prop. A&P.L.
§501-551.

North Carolina: North Carolina Common Law.

North Dakota: the period of adverse use must be at least ten (10) years. North Dakota Code
§47-05-12.

Ohio: the period of adverse use must be at least twenty-one (21) years. Ohio Code §2305.04.

Oklahoma: the period of adverse use must be at least fifteen (15) years. Oklahoma Code §12-93;
60-333.

Oregon: the period of adverse use must be at least ten (10) years. Oregon Code §12.050

Pennsylvania: the period of adverse use must be at least twenty-one (21) years. Pennsylvania Code
§42-5530.

Rhode Island: the period of adverse use must be at least ten (10) years. Rhode Island Code 34-7-1.

South Carolina: the period of adverse use must be at least twenty (20) years. South Carolina Code
§15-67-210 through 260.

South Dakota: South Dakota Common Law.

Tennessee: the period of adverse use must be at least twenty (20) years. Tennessee Common
Law.

Texas: Texas Common Law and Texas Civ. Prac. Rem. Code §16.021 onward.

Utah Common Law; the period of adverse use must be at least twenty (20) years. Utah
Common Law; Title 78, Chapter 12.

Vermont: Vermont Code §12-501.

Virginia: the period of adverse use must be at least twenty (20) years. Virginia Common Law.

Washington: the period of adverse use must be at least ten (10) years. Washington Code
§7.28.050-.090.

West Virginia: the period of adverse use must be at least ten (10) years. West
Virginia Common Law Code §55-2-1.

Wisconsin: the period of adverse use must be at least twenty (20) years. Wisconsin Code §893.28.

Wyoming: the period of adverse use must be at least ten (10) years. Wyoming Code §24-1-101.