What are my rights regarding an unrecorded easement on my property?
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What are my rights regarding an unrecorded easement on my property?
We have a home that I inherited from my parents about 10 years ago upon their death. There’s always been an easement on our property for farmers to access a supposedly landlocked field. However, over the years this easement has become a hang out most recently dirt bikes being
ridden up and down it. We’ve found people drinking out there, deer stands unauthorized, we have no trespassing signs, no one cares. We’ve searched both the deeds ours and the owners can’t find anything about an easement. We’ve had enough of it being treated like a park, it’s through the center of our property. The owner of the field is being paid for his land to be farmed. The ownership transferred last year to the son upon his death. We get nothing for this constant headache. The local police say we cannot block it off but I think we’re within our rights to do so, especially since the field isn’t farmed most of the year as we’re not close by. I’ve just had enough and am willing to relocate or gate off the easement and lock it giving the farmer a key but why
should we have to pay for it? Shouldn’t they have to? What rights do we have?
Asked on March 11, 2019 under Real Estate Law, Indiana
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
If there is no recorded easement, there is no easement at present: an easement MUST be recorded to be enforceable.
That said, if the field is landlocked (no other access) and the other property owner were to take the matter to the courts (e.g. bring a legal action), a court would almost certainly order the creation of an "easement by necessity"--an easement created because otherwise another propety owner can't reach his land. If a court created an easement this way, it would essentially become part of your land.
You should, to avoid that happening, speak to the other owner and work out a "license" or agreement with him that allows him and his employees or representatives (e.g. the people who farm for him) to access the land but makes the responsible for some basic security, like always closing an access gate behind them--and then put it a gate/fence and give him a copy of the keys or lock code.
As stated, he would almost certainly be able to get the right to access if taken to court, so don't try to exclude him; but work with him to exclude everyone else, like those dirt bikers you mention. A real estate attorney can help you with this.
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