My New Neighbor is Challenging our Use of our Driveway Entrance, It Falls on His Land, Can I Apply for a Prescriptive Easement?

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“I purchased a previously existing home, 8 years ago, next to a parcel of land that had an absentee owners. 3 years ago the parcel was sold to a new owner. After this new owner had his land surveyed he realized that I, and my neighbor, drove across a ~ 250 sq. ft piece of land in the nethermost corner of his 93 acre holding. This small piece of his adjoining property has been used continuously as a driveway entrance to our properties since their development 40 years ago. My neighbor is now challenging our right to cross his land. What options do I have, and is this a suitable condition for the application of a prescriptive easement?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

It’s definitely possible. In general, a prescriptive easement requires continuous use of another person’s property for a specific period of time. Also, the use must be open and notorious, adverse to the interest of the owner of record, and under a claim of right.

Different states have different minimum periods of time, and also different states interpret the other requirements differently. For example, in some states you must believe (mistakenly) that you are legally entitled to the use in order for it to ripen into a prescriptive right, while other states require just the opposite: that you know you were not legally entitled. Still other states don’t inquire into your state of mind.

So depending on what state you are in, this situation may or may not be one in which you have an enforceable prescriptive easement. I would suggest a quick consultation with a local attorney who can tell you for sure.

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Author: House Attorney

A house attorney has answered this question.

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