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  1. #1
    Join Date
    Jun 2010
    Posts
    1

    Default Prescriptive Easement

    Hi! I hope someone can give me advise QUICKLY! I live in Texas. 3 years ago I obtained a building permit by the city to build a garage opening into the alley behind my house. The garage sits right on my property line and the survey showed no easement on my side of the property line. We were assured by the Head of Planning & Zoning we would have always have access to the garage because the alley behind my house has been used as an alley for 40+ years even though it sits on private property. We were told that once it had been used as an alley for so many years it had to remain an alley. City dumpsters are located int his alley as well as gas & electricity.

    Last Tuesday, the property owner calls the police to have us arrested for trespassing because we used the alley to pull into our garage. He calls the police everytime we drive back there. I believe this is a Prescribed easement. How do I make sure of this before he fences off the only access I have to my garage? I am getting no help form the city on this. They claim they can not do anything and I could be arrested if he fences this alley off and I cross it. We just found out that the surveyer made a mistake and I have a 10 foot easement on my side of the property line that was not shown on the plat.

  2. #2

    Default Re: Prescriptive Easement

    Well my first question is (already know the answer), I'm sure the City gave you nothing in written saying you would always have access to your garage? Well in order for YOU to obtain a prescriptive easement, YOU would have to show you've had continuous and notorious usage of the "alley" for the required number of years (varies from state to state). If your usage doesn't meet this requirement, then you would probably need the help of the City to show that they've had continued usage for an extended period of time. Is the City still using the alley to pickup trash and service utilities? Also, you indicated there is an 10 feet easement on your property....what type of easement is this? I would assume the city has some type of recorded easement right of way in order to run utilities in the alley.

  3. #3

    Default Re: Prescriptive Easement

    Remember that the doctrine of 'tacking' allows for counting the years the previous owner used the alleyway, and the owner previous to that as far back as when the alley was made. I am not an attorney (rather I am a ROW agent) but I think your case to prescription is good. Hire an attorney and file an injuction. The City will likely get around to filing an injuction once the garbage contractor calls public works and says they can't get ingress down the alley. Their injuction will likely only seek to serve their benefit and they will continue to keep you at arms length.

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,586

    Default Re: Prescriptive Easement

    You need a local attorney at this point, or just give up.

    A competent attorney will go into letter writing mode immediately, reminding the city of their actions in issuing the permit, collecting trash, etc. and getting all of that on the record.

    Also a letter to the local police department reminding them that this is a civil matter which is none of their business, and a letter to the antagonist, claiming an easement by prescription.

    With the police out of the way, you can continue to use your garage as your neighbor will have to go to court in an action of trespass, and you can countersue for prescription.

    It's a poker game. Will your neighbor put up the thousands of dollars to get you into court on a possibly losing proposition? Who knows. The letter writing thing is inexpensive in the overall scheme of things and worth a try.

    As for the ten foot easement on your property, I have no clue as you haven't told us who owns the easement, or what the terms and purposes are.

  5. #5
    Join Date
    Feb 2010
    Posts
    616

    Default Re: Prescriptive Easement

    Quote Quoting kelanies
    View Post
    Hire an attorney and file an injuction.
    +1000

    This is a serious matter that can have significant ramifications to your property value (as well as piece of mind).

    I don't know, but wonder if title insurance might cover you in the event the title and plats were inaccurate and failed to disclose the easement. (Although you may find a written description of the easment in your old paperwork, and the fact the county missed it on the map might be secondary.)

    Get an attorney. Read up here to make sure you are comfortable with what they are saying, and to figure out what questions to ask.

    GL

    A

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