This post originally appeared on Burt M. Polson's Real Estate Journal and is republished with permission. Find out how to syndicate your content with theBrokerList.
Wars were fought and battles continue to be waged over land. Disagreements lasting thousands of years in some cultures over boundaries continue today.
The Bible discusses boundaries and markers over 25 times and warns against moving your neighbor’s markers or risk being cursed.
Without boundaries and their permanence, the land we have today would be worthless. Imagine buying land, building a home and later discovering that your neighbor now owns your land because he decided to move his boundary marker.
This can and does happen, however, I would like to think not so blatantly. The construction of a fence, installation of a driveway or perhaps the overhang of a building encroaching on a neighboring parcel are all examples of the value of a survey.
Open and notorious taking of the land
Case #1 – Henry purchased a 100-year-old ranch in Napa on several acres to fix up and move into. After a few months Henry reviewed an old survey he found and, after locating the boundary markers on his land, discovered his neighbor’s garage was built many years ago on the back half of his land.
Henry talked to his neighbor, Martha, about his findings and said that she needed to move her garage. Martha stated that it was built at that location over ten years ago and the previous owner knew about it and never said anything.
Case #2 – Robert purchased an industrial property in American Canyon for his plumbing contractor business. His neighbor, Matt, operated a landscape construction company next door on roughly the same-sized parcel. However, the back one-third of the land had a creek running through it that made the area inaccessible from Matt’s front two-thirds of his parcel.
Robert decided to add a level of security by installing a fence around his land. Matt came knocking on his door frustrated that he could not access the back of his property because Robert had “illegally” installed a fence with a gate at the driveway.
Robert’s fence and the gate were installed legally on his land, but unknown to him when he purchased the property, Matt had been using Robert’s driveway to get to his back section of land on the other side of the creek for the past twenty years.
The prescriptive easement
In both cases, the neighbor had a legal unrecorded prescriptive easement. Martha was able to keep her garage on Henry’s land and Matt was allowed to continue to use Robert’s driveway to access his rear land.
This just doesn’t seem legal or fair. These laws dating back hundreds of years were created during a different time in our society. But the rationale is that a title holder of land needs to pay attention to his land and those potentially using it.
A prescriptive easement is a right created to use someone else’s land through adverse possession. Significant property rights could be lost through inadvertence with the development value or monetary value potentially being diminished on the servient (that with a loss) property.
In part two we will go through the four criteria of a prescriptive easement, how a survey can help alleviate situations like this and how to protect yourself.
Burt M. Polson, CCIM, is a local real estate broker specializing in commercial, luxury estates, and wineries. Reach him at 707-254-8000, [email protected] Sign up for his email newsletter at BurtPolson.com.