What is the Most Effective way to Settle Easement Issues with Neighbors? Most Inexpensive?

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“We and our adjacent neighbors are in a dispute over a 4 foot high concrete retaining wall that straddles both of our property lines. About 6 years ago, I rebuilt the retaining wall over its original foot print (the original cinder block retaining wall was at least 30 years old and in bad shape and was falling over). I rebuilt it using poured concrete, added proper drainage, gave it rock back fill, etc. My wife then put on a nice rock face on our side of the retaining wall. The other side of the retaining wall is not seen, since the top of it is at the same elevation as the neighbors property. (our property sits about 4 below theirs).

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The retaining wall is about 5-6 feet from the side of our house and defines the entryway into our house. Since it is our entryway, we like it to look nice, have some greenery etc. The previous owner of the neighbor’s property was a 74 year old widow on fixed income. She was the owner of the house when I rebuilt the retaining wall in the summer of 2002 and had no issues with it. She liked the wall and the fact she didn’t have to spend a small fortune paying for half of it. We paid for the wall completely. I have all the receipts.

Over the last 6 years we have “maintained” the wall. Prior to that time, we maintained the wall as well. We’ve had large clay terra-cotta pots sitting on top of retaining wall with lattice in the pots to obscure the neighbors privacy fence, which is few feet back from the retaining wall. Last year, the neighbors that bought the house from the estate of our deceased neighbor (they purchased in 2004), had a lot line survey done and discovered (what we already knew), that the retaining straddles the property line.

Recently (last week), they decided to start objecting to the clay pots (which are on their property, according to their survey). They demanded they be removed immediately. They had an officer from the Lafayette Police Dept come out and “mediate” the removal of the clay pots. We also had a survey done (for a 2nd story addition) in 2004 and obviously our surveys don’t agree.

We would like to see this matter is resolved legally once and for all. We don’t wish them to suddenly decide to paint over the nice rock face on our side of the wall (the part of the wall they claim is on their property) simply because “it’s on their property”. We would like to put our clay pots back on the wall and generally put things back the way they have always been. The neighbors have no constructive use for the area on the wall. So our questions are:

1) Because we’ve lived in the house (for 12 years) and maintained the retaining wall before and after it was rebuilt, and paid entirely for the reconstruction of the wall, does this give us a right to a prescriptive easement (i.e. right to own the wall completely) overriding the neighbor’s survey, which they claim gives them exclusive ownership rights?

2) The previous owner of the property, the Widow, never had any issues with our fixing the wall or planting along the wall, enhancing the visual appeal of the wall, etc.

3) Would mediation/arbitration be a better, less expensive way to go?

4) We’re just regular working folk, so we can’t necessarily afford a huge, expensive, protracted legal battle.”

Unfortunately, I can’t give you a definitive answer regarding whether you have a prescriptive easement (meaning, an enforceable right to continue using the property in the way you had been doing before). There are a lot of factors which go into determining whether one exists, and they vary from state to state. A local attorney could give you a better idea, for just the price of a consultation (though enforcing those rights will be more expensive).

If the previous owner gave you permission to use the wall the way you were, that actually cuts against you, since one of the requirements for obtaining a prescriptive easement is that the use must be without permission.

On the other hand, I can definitely say that mediation would be a much less expensive way to go. You should be prepared for some significant compromise if you go that way, but if you can come to an agreement with your neighbor through mediation, it’s much more likely that both of you will keep to the terms of your agreement.



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Author: House Attorney

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