Real world situation. My lot and my neighbors lot abut state conservation land. The topography from his lot makes it inaccesable, however across mine he can gain access. He has been doing that with my knowledge for a few years. We are good friends, but I dont want to let this ripen into such an easement. I have studied that a letter to him granting him permission to continue using my property would prevent an easement claim. Any thoughts?
You and your neighbor should hire a title examiner to search the deeds, and probate records.
If that does not yield definative information, you should protect yourself by obtaining a written, legal opinion from an attorney who specializes in land use issues.
Surveyors are not authorized to provide legal opinions.
If you send your neighbor a certified letter, receipt requested, and you save a copy of the letter and the receipt, (FOREVER), you could submit it to the court, if your neighbor files for legal action.
However, I think a case could be made, if you send him the letter, that you gave him written permission to access his land, over your land. Written permission is normally called "An Easement" or a "Right-of-way". And it could be classified as an "Un-Recorded" easement or right-of-way.
The written legal attorney opinion is the safest.
My neighbor knows he is crossing my land, he is not making any claim, just wanted to know if it was ok to cross my property for accsess. I said ok, I just want to say that this is still my land exclusively, without giving up ANY rights to it.
If it's permissive, he can ripen no claim.
If he or his successors in title don't think it's permissive, there might be a claim. Get the permission thing reduced to writing. Better yet, get your attorney to handle it.
How much do you value your friendship?
Write him a term limited agreement that you can evoke to allow or deny permission to cross at your discretion.
0.02
I think it was written already:
Prepare a license for his benefit. Include the conditions to terminate it upon sale of either property, or with 30 days notice or some other boilerplate nonsense your attorney can draft up. Present it in the right way: you have no access and this gives you legitimate access. Sign on the line and don't worry. (maybe you should let the lawyer do the talking...)
See Don Poole's case: Kingsbury Beach (ask Don for the reference). The predessor in title was a nice person who allowed her neighbors to use the beach. She socialized and barred access into the sensitive dunes. Although it was indirect, the court ruled that she had been permissive, therefore no Adverse Possession or Prescription.
What have you done for your buddy to break the adversity necessary for a valid claim?
Why not grant a real easement? Land swap?
What Thadd said, kind of.
I think you need to consider some kind of viable access for your friend, not only for now but in the future. What's going to happen when your friend wants to build something? Or when he sells and the new owners push for access? Does your friends lot have frontage on a road and the access is just difficult and expensive through the frontage?
Think down the line. Prevent future problems by resolving it all now.
This does lead to the murky waters of necessity as well.
