Subject: Re: Road Easements and Adverse Possession
From: blackman@best.com (Diane Blackman)
Date: 1997/04/18
Newsgroups: misc.rural

David Buxton wrote:
: The laws of adverse posetion were established back in the days when rail
: lines were being laid all across the country. With such laws, a farmer

No, actually adverse possession is pre-colonial. The theory as it is applied in many states originated in England and became incorporated into the law of various states when by statute the particular state decreed that English case law would apply. Not all states did this, and not all states recognize adverse possession, at least not in the same way.

: could fence off his land and the railroad had to go around his property.
: In some states such fences establish their posetion in 7 years and in some
: cases 10 years.

And in some states it is twenty years and in some states it is five years. In some states the claimed land must be entirely enclosed with a fence, in others it need only be partially enclosed. And sometimes it varies depending upon the circumstances.

: OK, so lets say you live in a neighborhood association community with
: established easements. Lets say the neighbor across the street puts up a
: fence on the property line instead of at the easement set back. After
: seven years the easement no longer exists behind that fence. The neighbor

Maybe, maybe not. Depends on the state, the purpose of the easement, how it was established and a lot of other factors.

: can deny access to utilities, road improvements, etc. If the neighbor has
: been mowing in front of the fence for the last seven years, then a
: reasonable amount of fence maintainable frontage becomes his. If the

Not necessarily. If the neighbor does acquire any rights it could be ownership, or it could be only an easement. It depends on the law in your state. Many states do not allow adverse possession unless the person claiming the land has paid taxes on the land they are claiming. No taxes, no adverse possession. There are a lot of other "it depends" involved.

: neighbor puts his fence entirely onto your property and you let it remain
: for seven years, then he becomes owner of that chunk of your property.

Possibly, it is a real risk, but it isn't necessarily the result. Again, lots of "it depends" are involved.

: Easement encroachments can seriously limit the accessibility of properties
: on the road. So, lets say you want to sell your house and finally come up

True.

: with a buyer. The mortgage company sends out an agent to look things over
: and finds that there is an accessiblity problem. The mortgage company may
: very well refuse the loan. You could end up with an unsalable property
: because of what your neighbor has done in the easement. In other words,

True

: if your neighbor encroaches into the easement, you have 7 years to send
: his fence back to where it belongs. After that he has the legal right to

Don't count on it. Depending upon the circumstances it could be 5 years, or it could be much longer. Also VERY IMPORTANT is that there are other things at work that could make the period even shorter. Depending upon the state there are other legal aspects to be concerned about. If you are aware of an encroachment work on the problem right away.

: keep his fence where it is and the legal description of the easement no
: longer means anything because of his fence.

Again it depends. A fence can extinguish an easement, but it will not necessarily do so. So on the one hand if there is a fence that interferes with your easement you are wise to be concerned that you may lose some rights. On the other hand if you are the fence owner don't smugly assume that you have eliminated easement rights.

Adverse Possession and Prescriptive Easements have some pretty simple basic principles, but the application of those principles is very complex. Your ordinary lawyer is rarely competent to handle it. Surveyors are your best source of information for references to lawyers that understand this area of the law well enough to present your best case. If you are in a land dispute you will save time and tears by consulting with such an experienced lawyer. Otherwise you may get your hopes raised only to be dashed on the rocks of reality.

The best way to get on the road to problem resolution is to get the most honest assessment of the situation as early as possible. A lawyer who just says yes, yes, yes isn't doing you any favors. A lawyer that simply accepts the facts as you present them is not going to be able to give you a honest assessment. The lawyer that will do you good is the one that INVESTIGATES the facts and confronts you with both the strengths and weaknesses of your case.

Diane Blackman
diane@dog-play.com http://www.dog-play.com
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Be true to your own principles, and hold to them,
else complain not when the world runs contrary.


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