If I recently built a home and would like to fence in our property, what about access by our neighbors?

Question

Accepted Answer

The legal term use to describe your neighbor’s rights is “easement”. An easement is the right to go onto the land in possession of another and make a limited use thereof. The land being benefitted by the easement is called the dominant estate. The land being burdened by the estate is called the servient estate. For an easement to be valid it has to be created. There are many ways your neighbors could have created the easement.

Express Easement

An express easement is an easement created by a writing signed by owner of the servient estate.

Here in your facts you stated that there was never a written agreement between the dominate and servient estate owners creating an easement. Thus the easement could not have been expressly created.

Easement by Prescription

An easement by prescription is based on the theory of adverse possession, only the emphasis is on adverse use. It may be created without an agreement. The dominate estate use of the easement must have been hostile, open, actual, and continuous for the statutory period. Hostile use is use that is without the owner's consent. Open use is use sufficient that puts others on notice that the dominate estate is making use of the easement. Actual use is the level of use that determines the scope of the easement. Continuous use is use that would be typical of a dominate estate user for the statutory period.

Here if the original servient owner gave permission to the dominate estate owner to use the road then its use is not hostile and the easement could not have been created by prescription. Check with the prior owner and see if they gave the dominate estate user permission to use the road.

Also check you state laws to see what is the statutory period. Some states require not only a time period but also that the dominate estate pay the property taxes of the servient estate during the statutory period.

So it seems to me that the easement was not created by prescription.

Easement by Necessity

An easement by necessity is created in a landlocked situation where there is no reasonable means of ingress or egress to the property.

Here you state that the dominate estate is accessible via another road as a result their use of your road is not a necessity but seems to only be a convenience.

Therefore it does not seem to me that an easement was created by necessity.

Easement by Implication

An easement may be created from existing use if, before a tract of land is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant part and a court finds the parties intended the use to continue after separation.

Here you will have to go back in time to a point where the dominate and servient estates were one estate. If the road existed then, its use is reasonably necessary for the dominate estate, and when the estate was split the two owners intended the use to continue you may have an easement by implication. Unfortunately your facts did not include any information on this issue so I cannot make any determination here.

Summary

It seems from the facts that there was no express easement nor easement by prescription or necessity. No facts were included to determine if an easement by implication exists. I would recommend that you inform your neighbor that use of the road is no longer acceptable, post signs to that effect, tell them when you will be building the fence, and then build the fence. If your neighbor continue to use the road ask an attorney to intervene. He will be able to provide you with further guidance.

On a final note you may be able to seek damages from the seller of your estate. There are certain warranties in a land sale and the easement may breach such warranties. Talk with a real estate attorney for more informaiton.

If I recently built a home and would like to fence in our property, what about access by our neighbors?

Get Legal Help Today