Prescriptive Easements in Pennsylvania

**bee0209** · 11-11-2008, 08:21 AM

Hello,
I have a "shared driveway" with my neighbor. However, neither one of us has an easement on record. I am planning on "extinguishing" the shared driveway and creating a private drive next to my home. I would build a fence to run along the edge of the property line (of course, fully within my property as determined by a survey and approved by the township).

I am concerned about the neighbors claiming prescriptive easement. I am not 100% sure on how many owners there have been of their property over the 21 year period they would need in Pennsylvania (they purchased the home in 2006). I would hope the difficulty of proving the 21 year use would prevent them from claiming easement, but you never know...

My question is- even if they can prove the 21 years of use, I think they have acted to "abandon the easement," but I am not sure if what they have done constitutes affirmatively abandoning the easement?

As explanation of this, currently, I drive down the driveway that lies in the center of our properties and then pull my car off to the right and park fully within my property lines. However, they have fenced off the part of their property where they can pull off to park within their property.Their entire backyard is fenced in, preventing them to have a spot where they can park their car and not have the car be parked half on my property. So, essentially, they have NOT blocked their use of the area that would be considered part of the "easement" (the half of the drive located on my property and the half on their's), they have only prevented themselves from being able to utilize the easement as it would have been intended to be used. (I.E. they could drive up and down the driveway, but they have no area on which they can legally park their car).

Would what they have done (erected a fence to block their parking area) constitute affirmatively abandoning an easement?

Thank you in advance for any advice!

**ansoniadriveway** · 11-12-2008, 05:39 AM

very messy situation, look at your schedule a attached to your closing paperwork, deed. i am currently involved with a similar situation with a neighbor who enjoy rights to our driveway via a quit claim deed dated 1944, and this neighbor carelessly and recklessly uses the driveway almost hitting them. i would be cautious granting any easments, once done, very difficult to undo, and the quit claim deed will run with the land, so the next neighbor will enjoy the same rights as the ones you are currently considering granting the current ones, move cautiously.

**lwpat** · 11-12-2008, 07:11 PM

Hard to tell. Your best bet is to talk to them about your plans and even pay them something reasonable to give up any rights they may have. I am assuming that they have another driveway.

**bee0209** · 11-14-2008, 10:29 AM

Thanks for the advice. No, they don't have another driveway- their routine practice is to park their cars on the street (though sometimes partially blocking the entrance to the drive). When they do park off the street, they park in the middle of the drive (half on my property and preventing my entrance/exit). Despite my talking to them and having a letter sent to them explaining that they cannot block the drive, they continue to maintain that they can park wherever they want. Which is why I want to just scrap it and create a new drive- unfortunately much smaller in width, but at least totally my own. I considered putting up a 12 foot retaining wall with barbed wire between our properties, but that may be going too far...

**LandSurveyor** · 11-14-2008, 05:24 PM

The fact that a survey will show that the property line runs down the center of the driveway and that the township will grant you a fence permit means absolutely nothing.

You can pay for a survey and pay for a fence and then be mortified when you are taken to court over this and you lose.

You need to run all of this past a local real estate attorney before proceeding with any of your plans.