Obstruction of a Rear Access Gate
My question involves an easement in the state of:Maryland
We purchased our single family home in 2009. There is a parking pad off of the road in the front and the house sits on a steep hill with about 3 flights of stairs from the parking pad up to the front porch. When we purchased the home, it was listed (and recorded by the land surveyor) with a rear-access drive-in gate that provided us vehicle access to the backyard. To access this gate, we have to drive a block over and enter the back gate through a church parking lot. This is the only way we can have any home maintenance services (lawn service, tree trimmers, etc) access our home because of the steep incline. My husband also has his motorcycle stored in the shed in the backyard. We bought this house because it had this rear access gate (otherwise, moving furniture, etc would be nearly impossible and we would not have considered it). Without consulting us, the church planted 4 trees against our rear access gate and put up temporary fencing so the gate is no longer accessible, by vehicle or even by walking through it. There was never an issue before and when we contacted them about it, they said it was for "security purposes". Our access gate does not block any of their parking nor have we ever parked there and the motorcycle is now trapped. Not to mention we can no longer have any of our maintenance services come to our home. Do we have grounds for an easement, etc? What should we do?
Re: Obstructiono of a Rear Access Gate
Not enough information here. There may be a prescriptive easement or easement by necessity, but we can't tell. You need to see a real estate lawyer.
However, just because you relied on the fast that there was a gate there doesn't necessarily give you any rights.
Re: Obstructiono of a Rear Access Gate
Have you reviewed the title history for the properties to see if there is a granted easement?
Do you know when the gate was installed or by whom, or at least approximately how long it has been in use? Where do the fence and gate lie relative to the boundary line?
When you say that there was never an issue with the gate, do you mean that there was no communication between you and the church? That there was communication, and they always indicated that they were okay with the use?
Re: Obstructiono of a Rear Access Gate
The way our property sits, there is a steep hill in the front and about 25' up the hill, the property flattens out and the house sits on a relatively flat yard. The back property line is where the fence lies and backs up to the church property on the same geographical plane if you will.
The fence is at least 20 years old and was there before the church acquired their property. The fence lies on the boundary line between the two properties and the gate has been used by us for about 5 years. I am unsure when the gate was installed. Our title does not include any recorded easements. When we moved in, we were friendly with the church and they verbally indicated the use was fine with them but they recently changed directors. We were not contacted about any concerns with our use of our gate, although other neighbors who parked in their lot were contacted and asked not to.
Re: Obstructiono of a Rear Access Gate
Quote:
Quoting
AmcJ
The way our property sits, there is a steep hill in the front and about 25' up the hill, the property flattens out and the house sits on a relatively flat yard. The back property line is where the fence lies and backs up to the church property on the same geographical plane if you will.... The fence lies on the boundary line between the two properties and the gate has been used by us for about 5 years.
The fence is on or near the property line, that's clear from the original post, but what I'm trying to determine is its location relative to the property line. Their side, your side, or right on the line. Are you telling us that you looked at an actual survey, or found monuments, such that you know that the fence is exactly on the property line?
Quote:
Quoting AmcJ
The fence is at least 20 years old and was there before the church acquired their property.... I am unsure when the gate was installed.
Do you have reason to believe that the gate is newer than the rest of the fence?
You can check with the building department for you municipality to see if they have records of a permit for the fence and, if so, what they reveal about when it was installed and by whom.
Were your lot and the church lot ever under common ownership? If so, please share the history.
Re: Obstructiono of a Rear Access Gate
After finding the monuments, the fence is on their side of the property line. Portions of the fence were replaced due to its age, including the gate but the gate has been there for at least the last 2 previous owners. We have contacted the building department to see who built the fence and if it originally had the car-access gate and are awaiting a response.
Our lot and the surrounding lots were owned by the same family and subdivided and sold between the 1930s and 1960s. Our home was constructed in 1949. The church purchased their original lot and then parcels of surrounding lots in the late 1980s through 1995. The church was actually constructed in 1999.
Re: Obstructiono of a Rear Access Gate
I think you're in a good position to argue that you have a continuing right to use the gate. There may be something in the title history, not yet discovered, which would help. If not, the title history may suggest some form of implied or reserved easement based upon the access issues and one-time common ownership of the parcels. You also appear to have an argument for a prescriptive easement based upon the appearance that the gate has been in place for decades, and the fact that the only plausible use of the gate is to benefit your property. In Maryland, when a person has used a right of way openly, continuously, and without explanation for twenty years, it is presumed that the use has been adverse under a claim of right. The church can attempt to refute that, by attempting to establish that the use was purely permissive, but I think they'll have a real issue of proof given that they weren't the property owner that created the situation, you've never needed their permission to use your gate, and they're likely in the dark about the prior history.
At the same time, it's unlikely that the church is going to relent merely because you say so. If it were me, I would meet with a real estate attorney, taking as much documentation about the history of the parcels and use of the gate as I could find, and propose that he write a letter to the church arguing that you have an easement to use the gate and that they need to remove their obstruction. A Maryland property lawyer will be in the best position to evaluate what theories to assert in the letter, and can also advise you as to the possible cost of litigation should the letter not prove fruitful. If a letter works, it's a relatively small investment to resolve what looks to be a potentially huge problem with the maintenance and ultimate marketability of your home.