by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.
Question: Several years ago my mother bought a home in the Heber-Overgaard area in the White Mountains. My mother owned this home as Joint Tenants with Right of Survivorship (“JTWROS”) with me. My mother has passed away, and I am now the sole owner of the home. On my last visit to the home a neighboring property owner told me that he had the right to drive over a dirt road in the backyard of my mother’s property. I have searched the County Recorder’s records, and there is no recorded easement to this neighboring property owner. I want to fence off the backyard. The neighboring property owner says that, if I attempt to prevent his use of this dirt road, he will take me to court because he has used this dirt road for many years. Do I have any right to keep this neighboring property owner from using this dirt road?
Answer: In general, if the neighboring property owner has been continually using this dirt road for more than ten years without your mother’s permission, this neighboring property owner may have a prescriptive easement to use this dirt road. You should check your mother’s title insurance policy issued when she bought the home. Although this title insurance policy probably does not cover this non-recorded prescriptive easement, if it did furnish coverage, you as the surviving joint tenant should have a claim under this title insurance policy. Otherwise, you should contact a real estate attorney to see if there is any basis to oppose your neighboring property owner’s claim for a prescriptive easement.
12 responses so far ↓
1 Howard harvey // Dec 4, 2006 at 6:28 pm
RE: PRESCRIPTIVE EASEMENT/ RIGHT OF ADVERSE POSSESSION
The KEY here is… DID the Mother GIVE persmission to the neighbor to use her property? IF she did, the neighbor crossed it At Her Pleasure -and that persmission can be withdrawn by her heirs.
There’s a famous old Court case on that very matter. The Plaintiff claimed his right to access his land across the Defendants. The Defendant’s lawyer asked the Plaintiff just WHY he thought he had any right to cross the land to start with. The Plaintiff declared “Because Farmer Brown SAID I could!” To which the Attorney said “And NOW he’s saying you can’t! ”
To which the the Judge said “Case dismissed” !
2 John L. Wake // Dec 4, 2006 at 9:09 pm
If someone is using your land without permission, I heard one guy say, send him a registered letter giving him permission to use it for X amount of time to establish it was used with permission and then withdraw the permission.
3 Jack Erceg // Sep 19, 2007 at 9:15 pm
Purchased land parcel in Sedona with deeded common driveway easement in 1996. Checked with Title Company and they verify that our deed as registered stipulates the 25 ft. common driveway easement to be intact! Land that the driveway easement is on was owned by a 3rd party–I being the first party…the next door neighbor being the 2nd and Mr. X being the land owner (3rd party.) The next door neighbor (Party #2) purchases the land the common easement is on from Party #3 and forces us (Party #1) from using the easement by constructing fences & gates within the common easement preventing ingress/egress to our parcel. City gives new land owner of the easement (Party #2) a Building Permit to construct the obstructions but within short order realizes their error and rescinds the permit, telling owner to remove the obstacles!Owner (Party #2) will not accept any correspondence from the City. City can not administer/enforce their dictate & refuses to force Party #2 to remove gates/fences. What is legal status??????????????
4 Nicole Green // Oct 6, 2007 at 9:44 am
Our city is now saying we can’t take motorized vehicles on a dirt road (A firebreak road) that has been in continual use for over 30 years. Part of this road also connects to County owned segments of the road . What rights do the people of that city have?
5 John Wake - Realtor // Oct 6, 2007 at 9:48 am
Nicole,
Send your question to Chris Combs at Chris@CombsLawGroup.com with the subject line “Real Estate Q&A.”
Thanks.
6 Nicole Green // Oct 12, 2007 at 8:06 pm
Chris Combs at Real Estate Q & A Our city is now saying a dirt road we’ve been riding motorcycles on for over 30 years can no longer be put to that use. This road also passes over the edge of forest service land in places and connects to County owned land in some places then back to land in other cities down a few miles. What rights do the people have to continue this use? I consider some of this could be prescriptive rights, some could be shown RS2477 if we go back far enough what rights do the people have to continue the use on public property?
7 John Wake - Realtor // Oct 13, 2007 at 1:44 am
Nicole,
I guess I left out his email address. Whoops!
Send your question to;
Email your question to “Chris@CombsLawGroup.com” with the subject line “Real Estate Q&A.”
8 dave // Jan 13, 2008 at 5:04 pm
We have an adjacent neighbor that is moving snow on to our vacant property and allowing daycare clients to turn around on our property. We lived there for about two winters and during that time he did not move snow on to our property and they requested of the daycare clients that they not turn around on our property. He did ask if he could back his boat on to our property and we agreed but that happened rarely.
We have asked the sheriff to stop this recent moving of snow four feet high on our vacant land as we are trying to sell it. He told them that he has used it for five consecutive years which isn’t true.
He has also come on to our property and asked people looking at our property to leave. The most recent time the sheriff was called. There was verbal assault but nothing physical so it wasn’t sent on to the DA. What can we do…? People that have looked at our property have said they would be afraid to live there for fear of harm to their animals or themselves. We do not have money to spend on court fees. Thanks
9 John Wake - Real Estate // Jan 13, 2008 at 5:42 pm
Email your question to “Chris@CombsLawGroup.com” with the subject line “Real Estate Q&A.”
Perhaps he will use it in his column.
10 Roger // May 27, 2008 at 11:28 am
We have a easment (ingress and egress) to our property through a neighbor’s property. The neighbors made an informal agreement with us several years ago that they would only have one gate along that easement. Since that agreement they have sold a piece of that property along our easement. The new owners are trying to make us move our easment so they can put their residence on our current and legal easement. In order to persuade us to relocate our easement (which we feel is not in our best interest since the new easement is located in a flood zone) they are threatening to put up several locked gates; regulate entry to only residence of our home; and mandate that each driver of our residence sign a form indicating ownership of the gate key. Besides ourselves, there is one other elderly couple who shares our easement. They are in poor health and share concerns about the new land threats as we do. What action can we take and what are our legal rights?
11 Marlene Dawson // Jul 9, 2008 at 9:46 pm
Can a city assert rights over a citizen’s property by asserting a prescriptive easement? Wouldn’t the property owner have a right to claim inverse condemnation since it is a governmental body taking the property?
12 John Wake - Real Estate // Jul 9, 2008 at 10:06 pm
Marlene,
I’m afraid you would need to talk to a real estate lawyer about that.
http://www.arizonarealestatenotebook.com/2008/01/09/arizona-real-estate-attorneys-lawyers/
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