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How do I handle an access dispute?

QUESTION:

My wife and I purchased some property a few years ago intending to build a house someday. Unfortunately, we never thought to ask about our access rights. We have learned that one of the neighbors installed a gate with a lock that now blocks entry to the dirt road we were using to get to our property. Is there anything we can do?

ANSWER:

Since the "road" to your property is not a "public" road, your rights to continue to use the dirt road you mentioned will depend upon whether your property rights include an easement for access over the dirt road.

Easements are created in various ways. An express grant of an easement is an interest in land which is created by a writing, the most common being an easement deed.

A search of the public records should reveal whether or not an easement deed was ever given to benefit your property.

Unless you can prove that your property is the beneficiary of an express grant of easement across the dirt road, your alternative is to prove that your property has an easement by implication or by necessity or by prescription.

An implied easement may be found only when there has been 1) a unity of ownership of your land and the land on which the easement runs; 2) a later separation of that common title; 3) before the title was separated, there was a long and continuous and obvious use of the road for your property sufficient to show that it was intended as permanent; and 4) the easement must be reasonably necessary for the beneficial enjoyment of your land.

An easement by necessity and an easement by prescription also require proof of certain and very specific elements.

If the facts concerning your land’s history and use can clearly satisfy the required elements for a court to find an easement exists by either implication, necessity or prescription, your neighbor might be willing to cooperate in granting you an easement rather than fighting a court battle which he will ultimately lose.

Neighbor disputes can be highly charged with emotion as demonstrated by your neighbor’s choice to put up a locked gate. Often, clear and logical proof plus a sensitive but firm method of initial presentation to the neighbor can make a difference in the direction that the dispute takes.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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