Whose Property Is This?

Filed under: Estate Planning

You leave home for a much-needed vacation, and one week later you return home to discover that something is… different. There’s a fence on part of your property, or someone has cut down a tree that you believe is yours, for example. What is going on? Does your neighbor have a right to do these things on your property? It is your property, right?

Before storming over to your neighbor’s house to demand an explanation, or stressing yourself out over this issue, you might actually want to meet with a real estate attorney. It is possible that the property you believe to be yours is actually subject to something called a prescriptive easement.

An easement exists when parts of your property can be legally used by non-owners. For example, several neighbors may share a driveway that goes through each other’s property lines. Or, you might have to allow the electric company to trim tree branches, or even entire trees, away from their power lines.

Sometimes these easements arise from mutual agreement among property owners, such as the driveway situation. Such easements are permanent, based upon recorded documents that will show up on a title search, and typically pass from one owner to the next, so that if you sell your property the next owner will “inherit” the easement and therefore the right to use the driveway.

A prescriptive easement arises when a neighbor uses a portion of your property openly and without your permission, claiming the right to such use, with notice to you, for a period of time (five years, by current law). Your neighbor doesn’t own the land at this point, but the prescriptive easement would, if proven, entitle them to use of it.

So can they alter your property in the manner that you discovered when you returned from your vacation? Strictly speaking, a prescriptive easement only entitles your neighbor to use the property in the same manner to which they were accustomed during the five-year prescriptive phase of acquiring the easement. So, to use a silly example, sharing a driveway does not entitle your neighbor to keep livestock there.

But of course, they could argue that the changes they made were necessary in order to continue using the property. As you can see, this could become a sticky issue in court.

Clearly, prevention is the best antidote. By communicating openly with neighbors about acceptable and unacceptable use of your property, you can possibly prevent a potential prescriptive easement situation from getting out of hand. Since time is of the essence, it is recommended that you consult with a real estate attorney promptly, to gain a clear understanding of your rights regarding your property.

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