Q: We live in the county on about one hilly acre with a level spot extending to our neighbors’ house. Our neighbors sometimes have guests or visitors so I said they could occasionally park on our property if needed, in an effort to be friendly. Now it appears they are using it as a regular parking place. While we don’t mind occasional use, is there something I should do to ensure this doesn’t become a regular habit and legal right for them?
A: It’s great to be a good neighbor. Unfortunately, mostly due to a variety of very old laws that were designed for a different purpose, the nice guy really can finish last in situations like this.
The “legal right” issue you identified is properly known as the law of prescriptive easement. A prescriptive easement is remarkably simple to obtain.
If you use someone else’s land for a particular purpose and without their permission, in five years you can go to court and have a recordable easement issued in your favor.
That easement then lasts, with a few exceptions, forever.
The purpose of the law is many centuries old. It was developed to prevent otherwise useful land from lying unused.
Back then, people were thinking agriculture. Now they can think parking.
The key here is the concept of “without permission.” Giving someone permission to use your land means they can’t acquire an easement.
Most of the time, it really is that simple.
It’s perfectly legal to give someone permission by just saying, “hey Fred, feel free to park there anytime,” or “just on Sundays,” or “only when you’re having a big party.”
However, five years from now Fred may completely “forget” about that conversation. Even more troublesome is he may sell the property or die and leave it to his heirs.
Neither the heirs nor the buyer know anything about the permission you gave and they are free to continue using the land, just like Fred did, and counting up the days until the five-year period.
So, here are a few ideas just to cover your bases.
If you really want to get extreme, you can record something called a Notice of Permissive Use at the Recorders Office.
This becomes a public record document that grants whatever permissions you want to grant to the owner of Fred’s property to use the land for parking. It would explicitly state that the permission is revocable at will.
However, that requires a legally prepared document and the cost of recording. It also involves recording another document down the road when you revoke your permission.
Typically, all of that is more trouble than it’s worth.
Next on the “pain-in-the-rear” list is to draw up a simple document granting permission to the neighbor and get him to sign it. Should someone else later own Fred’s property, you will need to expressly revoke your permission.
Now, all of this assumes that you don’t mind neighbor Fred parking there, you’re just concerned about him acquiring a prescriptive right.
If you don’t want him parking there I’d suggest you send him a letter saying so. Keep a copy in your file and note when you mailed it to him. The letter should expressly revoke any permission you have given him in the past.
But if Fred keeps parking there, at the end of the day, the only way you keep him off is to file a lawsuit and get an injunction from a judge. What you’re really doing is suing him for trespass.
All of this sounds complicated, but what is really going on is simply this: It’s the property owner’s (that you) responsibility to keep people off of his property.
If people come onto your property who don’t have a legal right to be there, it’s the owner’s job to force them off. In modern society, that means filing a lawsuit for trespass.
Since you obviously have a pretty good relationship with your neighbor which, I assume, you don’t want to screw up by suing him, I’d first recommend you sit down and talk with him.
I commonly have clients who come in wanting to sue so-and-so for something. But when I ask if they’ve tried talking to so-and-so, the client looks like a deer caught in the headlights.
Obviously talking doesn’t always work. And sometimes emotions are running too high for the parties to talk to each other and they need someone else to do it for them.
But if you’re going to be living right next door to someone for the foreseeable future, I think it’s a good place to start.
Tim Jones is an attorney in Fairfield. If you have any real estate questions you would like answered in this column you can contact him at [email protected]