prescription question

Reply

  #1  
Old 02-11-07, 10:24 AM
Member
Thread Starter
Join Date: Feb 2007
Posts: 7
prescription question

I own property in NH and have used a neighboring property to access my back yard. I've lived here and used the property in excess of 20 years, which is the required time for prescription. I've used the property openly and without the owners permission. I've also left trailer, boat and automobiles on the neighboring property for long periods of time (at times for more than a year). My question is, do I need to execute some type of instrument for prescription or do I just wait until the current owner confronts me and maybe have to contact an attorney. What’s the best way to deal with this?
 
Sponsored Links
  #2  
Old 02-11-07, 11:42 AM
nap's Avatar
nap
nap is offline
New Member
Join Date: May 2006
Location: north
Posts: 4,163
You can do two things. Either wait until the neighbor restricts your use and sue then or you can file a quiet title lawsuit now.

Don;t know about the neighbor but I can assure you I would not be happy if you attempted or succeeded in taking away my property. Sometimes thse things come about because the owner is simply not trying to argue and be nice and not stop the use. In turn they get screwed by some guy filing a quite title suit to take my property.

I, persoannly, would suggest you file suit now. That way, if you have failed to perform as needed to claim prescriptive use of yet, it will put the neighbor on notice he has an a hole for a neighbor and he can kick you off his property.
 
  #3  
Old 02-11-07, 01:26 PM
Group Moderator
Join Date: Oct 2004
Location: WI/MN
Posts: 18,497
Here's the way I see it: Your neighbor has been a nice guy and not complained about you using his property. Why do you want to be a jerk and sue him?
 
  #4  
Old 02-11-07, 03:50 PM
Member
Thread Starter
Join Date: Feb 2007
Posts: 7
I don't want sue the landowner. This is the only access to my property behind my house. I recently had my roof replaced and my roofing contractor had to use it to get his job done. My mason contractor used it to replace part of my chimney that was falling apart. The two previous owners used it to access the back property as well, I use it on a regular basis. It's a rural area, the neighboring property is forest with no houses, and I don't even know the owner. For all I know it will stay that way and nothing will change. At some point I suspect it will be developed and houses will be built. Legally I can continue to use it for what I've been using it for the last twenty years. If I do something about it now, a potential buyer will know about it prior to purchasing it. Or I can do nothing and surprise someone building a new house there. I guess another option would be to tear about 3" off the end of my house, so I can fit a vehicle between it and the property line and just stop using the neighboring property.
 
  #5  
Old 02-11-07, 04:12 PM
nap's Avatar
nap
nap is offline
New Member
Join Date: May 2006
Location: north
Posts: 4,163
Suing the land owner and letting the judge render a decision is the only way to legally stake your claim.

I honestly could find very little regarding the requirements for claiming a prescriptives easement for New Hampshire. The only statute I saw simply gave the statute of limitations for defending against such a claim (that is the 20 year deal). I could find not stipulations or requirments to fulfill to allow such a claim.

I did find reference to a bill written in 2003 (I think) where the legislature attempted to limit or thwart preciptive easement claims. It doesn;t seem to be listed in the statutes so I presume if failed to become law. That in itself tends to make me believe that there is a contingency the disagree with prescrriptive easment claims and possibly the climate is adverse to granting them but that is only speculation on my part.
 
  #6  
Old 02-12-07, 07:52 AM
Pendragon's Avatar
Member
Join Date: Jul 2002
Location: USA
Posts: 1,835
I don't recall ever reading that vehicle access to a backyard as a requirement.
The solution, stop driving your car around back, or get a bigger yard the right way, by buying the extra foot or so you need.

There are many, many properties in my area that you cannot drive a vehicle down the side of the home.

If indeed the property is unimproved, the land owner may not even know that you are trespassing, and getting away with the x period of time shouldn't make it legal. I thought they did away with 'squatters rights' a long time ago..
 
  #7  
Old 02-12-07, 08:06 AM
Forum Topic Moderator
Join Date: Mar 2005
Location: USA
Posts: 43,044
Put the shoe on the other foot. Woudn't you hate to find out that someone has been using your property that you bought and paid for, paying taxes on and then that someone wants to relieve you of your right to use the property as you originally intended.

I suggest going to the tax office, finding out who the owner is along with tax value and the see if you can purchace some of the adjoining property.
 
  #8  
Old 02-12-07, 04:46 PM
Join Date: Dec 1999
Location: South Dakota
Posts: 3,140
I would doubt if you can get a quit claim on this property, since it appears you have been watching the clock on this matter. In other words, you have not tried to contact the owner at an earlier time and get his permission for you to use it. This is how a judge would see it. Now, there is one thing you could try to do. That is get an easement for a strip of land however wide you need it to be for your use. This would be the way that a gentleman would do it. If that does not work, you may have to purchase it. Good Luck
 
  #9  
Old 02-12-07, 08:37 PM
Member
Join Date: Jun 2006
Posts: 35
Holy crap...........

Call the person & make an offer. I'm gonna go & check my property stakes to make sure no one else is on my property.

If that kind of crap came to me from a neighbor...........TAKING property that I owned & would use for whatever reason I wanted.........The absolute, positively, last thing you would have to worry about would be how to access your back yard from my land.

I hope the person finds out & sues you for storage fees............dam

I cut my neighbors grass, invite them for dinner, send cards, party with them..................Youre trying to steal their land..................

I think DIY is about helping people do things that they otherwise don't know how to do.....I.E. helping your NEIGHBOR on the forum.............

You definately are missing something.

Gees
 
  #10  
Old 02-12-07, 09:00 PM
nap's Avatar
nap
nap is offline
New Member
Join Date: May 2006
Location: north
Posts: 4,163
Originally Posted by Jack the Contractor View Post
I would doubt if you can get a quit claim on this property, since it appears you have been watching the clock on this matter. In other words, you have not tried to contact the owner at an earlier time and get his permission for you to use it. This is how a judge would see it. Now, there is one thing you could try to do. That is get an easement for a strip of land however wide you need it to be for your use. This would be the way that a gentleman would do it. If that does not work, you may have to purchase it. Good Luck
that's what he is talking about. There is a difference between prescriptive easment and adverse possesion leading to title of land. A presciptive easment does not give title to the land but allows use of the land. The original owner still retains title and pays taxes but the neighbor gets to use it.

Like I said before, I could find little of nothing concerning adverse possession or prescriptive easement in New Hampshire statutes so I do not know the requirements for either.

There is no requirment to notify a neighbor you are trying to steal his land or force permitted use of the land. You can watch the clock all day. It becomes a matter of fulfilling a statutory requirement and how the judge views it is irrelevent. As long as the requirements or either one have taken place, the suit is merely asking the courts to formally grant what statutes allow. It is not a discretionary decision other than the acceptance of the evidence to prove filfillment of the reqirements, if they are subject to opinion.
 
  #11  
Old 02-12-07, 09:31 PM
Member
Join Date: Jun 2006
Posts: 35
Gotcha..............

So basically if you purchased a home with a utility shed built over the property line you would be protected from having it torn down because of negligence of the other landowners.

Some d___head can't park his chevy on it for a while & say it's his.

Duly noted.

I thought for a minute my neighbor that has let me walk through her yard to get to our community pool was about to loose three feet of her property so I could put in a sidewalk. Maybe I'll start storing my ATV on it.......she would never notice..........nevermind.

If I bought it, paid taxes on it, and that came down the pipes............the property would be rendered useless, as well as anything on it. Period. I would then start pulling property titles at Master & Equity to see where I could start to get even. All of that down time would breed ideas (all legal of course--we only play by the statutes).

But, that's just me. I don't like being screwed over. I'm sure that person won't mind.
 
  #12  
Old 02-12-07, 09:40 PM
nap's Avatar
nap
nap is offline
New Member
Join Date: May 2006
Location: north
Posts: 4,163
I thought for a minute my neighbor that has let me walk through her yard to get to our community pool was about to loose three feet of her property so I could put in a sidewalk. Maybe I'll start storing my ATV on it.......she would never notice..........nevermind.
==========

if she let you (permission), there is no adverse possesion or use contrary to the owners desires so there is no claim for prescriptive easement or adverse possession.

Granting permission defeats a claim of either one.

===========
now if you walk across the yard for the legally prescribed time period and the owner makes neither an attempt to prevent this or grants permission, you can legally claim a presciptive easement and she can never again bar you from using that path although you have not claim to title.

There are ways to claim title as well. Each state has its' own requirements to claim such.
 
  #13  
Old 02-12-07, 10:10 PM
Member
Join Date: Jun 2006
Posts: 35
Good argument for posting NO TRESPASSING signs, or fencing property. I would assume if you prevent the use of your property by anyone else as per local statutes you shouldn't have that problem?

I like how the thread has turned into an education on how to keep that from happening.
 
  #14  
Old 02-12-07, 11:20 PM
Member
Join Date: Feb 2007
Posts: 21
First off,you sound like a jerk!Let me break this down for you so you'll understand it a little better.In order for a prescriptive easement to hold up in court you must blatantly show that the use of property must be open, not secret, notorious, clearly observable, hostile, without the landowner's consent and continuous without interruption for twenty years.Well you may be able to prove all that,but the notorious.What if the owner of the property does not live in your state?He may not know that you are using his property,thus your use of the property has not been notorious.If you happen to live out in the country somewhere without any neighbors,you'll have a hard time proving this.
You then have to file a "Quiet Title Action" lawsuit,ok,you know this already.BUT...in order to file a lawsuit you have to have knowledge of the court system and it sounds to me that your lackng in that department.So you'll have to hire an attorney,who in exchange for a large amount of cash will do the necessary research to find out who owns the property.Then he will have to,by law,send a notice to this person.Notifying them of a lawsuit being brought against them and when and where they can appear at court.When your court date comes around and the case is brought in front of a judge and the judge declares that you have used this property for twenty years,but,you dont use it on a continuous basis and you have failed to show notorious behavior,the real owner of the property can and will counter-sue you for damage to his private property.Plus you will have to show that for the last twenty years you have used the parcel of land in a continuous manner.You'll have to show records from the past twenty years of storage of those vehicles and services rendered to your home by accessing that parcel of land
Also if you are trying to obtain the property so that a developer cannot come in and develop that parcel of property,you'll lose that arguement.The community will benefit from a new neighborhood thus making your easement null and void.The best thing you can do is try to contact the owner and set up a right of way easement or Easement Appurtenant.Plus most cases involving prescriptive easement are for really small things that get used like everyday,for example a driveway or a sidewalk.I highly doubt you drive behind your home everyday and have contractors show everyday to perform construction on your home! So everyone calm down no one is getting screwed out of their property,this type of thing usually happens when two owners have a disagreement on the use of some sort of shared property i.e.,driveway,sidewalk,beach front access.
 

Last edited by baj54; 02-12-07 at 11:32 PM. Reason: mispelled words
  #15  
Old 02-12-07, 11:56 PM
Member
Join Date: Feb 2007
Posts: 21
This is a very "gray" area of law.There are rules that are set up so people don't get what some of you are calling screwed out of their own property.This type of law originated out of the need for the public to possess and have a right to use some sorts of private property.You have to basically show that the land ownership is either in disagreement of who has rights to the property.Even though you may have used the driveway for more then twenty years,there are some exceptions to this type of law.Plus what you have to understand is that an easement is not ownership of the property or title,its just the right to use that property for a stated cause.I highly doubt that any self respecting judge in this situation would grant 4wuze a prescriptive easement anyhow.If he has to drive on this property everyday in order to exit and enter his property is really the only way a prescriptive easement would be allowed.Like I said if the owner was un-aware of the misuse of his property in a court of law all he has to do is say he did not know the property was being used in this manner.Also if 4wuze thinks that by storing his vehicles on the property for long periods of time constitutes continuous he is sadly mistaken.In order to constitute continuous use he would have to pretty much move all the stored vehicles there everyday for twenty years,some judges would even look at it from a different perspective, if it wasn't the same vehicle being stored there for twenty years then it wouldn't constitue continuous use because the vehivle itself was not being used for twenty years.Every time you put a new vehicle on the property it would start the clock over! Please 4wuze let me know how this works out.
 
  #16  
Old 03-04-07, 08:52 PM
Member
Join Date: Mar 2007
Location: greensboro
Posts: 17
so you are asking how too legally "steal" this property, what a jerk. If it was my property i would put up a 12 foot high concrete wall too keep you and your junk away.

I think we as a country need too change a few rules, didn't we steal enough land many years ago...............................
 

Last edited by rif73; 03-04-07 at 08:54 PM. Reason: because i can.........
  #17  
Old 03-11-07, 04:44 PM
Member
Join Date: Mar 2007
Posts: 75
Cool land question

I am not familiar with your local state law, but in Michigan you would be talking about two very different concepts, some of which have been touched by a couple of you in this thread.

The first is "Adverse Possession". This is a "common law" concept having its origins in England. The open notorius and adverse use of a neighbors property could result in a court granting the adverse user possession of the property. In Michigan, the period of time is 15 not 20 years. And "notorius" does not necessarily mean the land owner had to know either. Any one with knowledge of the advers use could testify as to what they knew about it.

Also, some state allow for "tacking" whereby if a string of several owners all used the property in this fashion for the required lenght of consective time, a court could still award title to the current adverse user.

Some states have elevated this concept to a statute while others still rely on the old common law. Yet a third set of states either have outlawed it or don't recongnize the concept.

The second concept is "easement by prescription" It has a lot of the same characteristics as AP except as one writer pointed out, you don't get title, just use, usally out of necessity.

I agree however, rather than role the die, I would find the owner (that's pretty easy to do, any title company can do it. The local assessor is also another good starting point) and stike a deal i.e. written agreement, whether it be an easement or some permanent transfer of some property in the form of a deed.

Resolution short of litigation is usually the best course to follow. As the old saying goes, the only people who make out when you have to go to court are the lawyers.

Good luck!
 
Reply

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Thread Tools
Search this Thread
Display Modes
'