Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“We are a townhome community with a private road that connects to public streets on each end. Though we are responsible for all repairs to that private road, probably 90% of the traffic is cut- through traffic between the public streets. We have not tried to stop this traffic in the last 20 years, but the flow of cars and trucks is increasingly heavy and our road is showing it. If this keeps up we will soon face a half-million dollars worth of street replacement split between 100 owners. This would be a severe hit to the value of our homes. Could we legally close one end of this road permanently? Members of our community would happily use the one remaining open entrance. The public streets on either side of us have many alternate, public exits so we would not be cutting anyone off from access to public city arteries.”Well, the question is, does anyone (other than residents) have an easement across the road? An easement is the right to use someone else’s property for a specific purpose, in this case for travel across it. If there is an easement, then you would be in violation of that easement by blocking travel.
Question: It is relatively easy to determine whether there is a written, recorded easement; it should be on record in the same place that deeds are recorded. If you find one, you will need to have the permission of the easement holder in order to block the road. It is also possible that the public has an easement (sometimes referred to as a “dedication”), possibly in the name of the city, county, or other local government. If there is a public easement, then it may be difficult or impossible to get the permission you need.Unfortunately, if there is no written easement that does not necessarily end your search. It is possible that someone-including the public-has what is known as a prescriptive easement, or an easement by virtue of use.
Different states have different periods of time for the establishment of a prescriptive easement, so you will need to determine the time frame in your state. Given that information, you must determine as a question of fact whether someone (either particular people or the public at large) has used your road without your permission for that period of time.The “without your permission” part is critical, since use with permission does not establish a prescriptive easement. In some areas, this can be accomplished by posting a sign stating that permission is granted; again, you will need to determine what the law is in your area.
Based on that law, you need to ask yourself whether a prescriptive easement has been established. If it has, then the holder of the easement has just as much right to unblocked access as the owner of a written easement would.That’s the legal theory. On a practical level, however, you need to consider whether anyone will actually try to enforce these rights. If there is a written easement, the holder is likely to try to enforce it. A prescriptive easement, however, may be too much trouble for anyone to try to enforce.
My advice, then, is that if there is a written easement, talk to the easement holder first. If not, you may want to consider blocking the road in a semi-permanent way (perhaps with a locked gate), and if anyone complains you can then consider whether you want to fight or remove the block.
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Before you make that decision, though, it would be a good investment to have a consultation with a local real estate attorney, so you know the costs and benefits of each possible course of action.
