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  1. #1
    Join Date
    Jun 2011
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    8

    Default Neighbor Selling Property With Encroaching Driveway and Parking

    My question involves an easement in the state of: Massachusetts

    The driveway behind our properties (my neighbor and I) has been used by him for many years but now I come to realize that 1/3 of the driveway is actually on my property. He approached me asking for an easement for it since he wants to sell the property. I denied a free easement and I asked to be compensated for it, to which he rejected the proposition and him and the realtor went ahead and listed it for sale with a driveway parking spot.

    The realtor is advertising it currently as a private parking spot and in this part of the state, private parking spots are hard to come by.

    What can I do? Thanks in advance.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,789

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    what is "many years"?

    If it is less than 20, tell the neighbor to stop using your property for anything. If you can block it off or somehow restrict the use, do that. I would post a sign for prospective purchasers to give them notice the land (and indicate it somehow) is private and not included in the neighbors purchase.

  3. #3
    Join Date
    Jun 2011
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    8

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    The current owner has only been there for 10-12 years, but it has been used as a driveway for more than 20 yrs, but by different owners.

    also does adverse use come into play? looks like the driveway and curb cut is older than 20 years.

  4. #4
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    Jan 2006
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    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    prescriptive easement requires 20 years to ripen.

    I do not know offhand if tacking is allowed. Tacking is where the use does not have to be by the same user but the chain of owners of the adjacent property added together. There are a couple surveyors that post here. They might know so hang on to see if any of them post.

  5. #5
    Join Date
    Aug 2010
    Location
    Maine
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    206

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    Quote Quoting jk
    View Post
    prescriptive easement requires 20 years to ripen.

    I do not know offhand if tacking is allowed. Tacking is where the use does not have to be by the same user but the chain of owners of the adjacent property added together. There are a couple surveyors that post here. They might know so hang on to see if any of them post.

    Yes, MA does allow tacking. Before I go further, I'm going to second JK's suggestion that you block off the area and inform buyers of the conflict. It may anger the seller, but it:

    A. might bring him back to the table, and
    B. as the custodian of your land you have the right to and are supposed to defend it.

    But, any prescriptive easement or adverse use has to be decided upon by the MA land court. Until a judgment is granted in their favor, no prescriptive easement exists. To your knowledge has a judgment ever been granted? Does your neighbor have a survey showing the apparent encroachment? Have they begun the process to sue for an easement(s) by prescription?

    In terms of the real estate agent, remember that their main job is to sell property. I would approach the agent (nicely) and inform them that this is your land and you'd like them to stop advertising it as someone else's. The last thing the agent wants is conflict; it's bad for business.

    Back to the adverse use. The seller may very well have a claim. But the onus is on him to prove it in a court of law. He is the one who will have to:

    1. Have the area surveyed. (Please let the surveyors onto your land, they're just doing their job.)
    2. Hire a lawyer.
    3. Go to court.

    This process will add up to many thousands of dollars in what I see as unnecessary fees (making the real winners in cases like this as always, the lawyers) since you've already offered to sell an easement. You could perhaps use this fact as a bargaining chip depending on how intractable the seller is.

    If the situation doesn't improve, it's time to talk to a MA lawyer.

  6. #6
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,558

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    The realtor is advertising it currently as a private parking spot and in this part of the state, private parking spots are hard to come by.
    If you have no doubt about the property line you can deal with that problem easily by calling the owner of the brokerage listing the property. Say basically what you have said here and demand that the misrepresentation not only be removed from the advertising but that the true situation regarding the actual property line be disclosed to any potential buyers.

    If you get mumbling about how many years it has been used, that there is obviously an easement, or anything else, just quit wasting your time with the person and file a written complaint with the Mass State Board of Registration for Real Estate Brokers.

    The neighbor may have to spend upwards of $20-30K to take you to court (not small claims), and prove in every detail that a prescriptive easement exists. And he can lose. If you wish to negotiate a grant of easement, you should be paid fairly for it and the neighbor would need to pay all of the surveying costs, fees, and legal costs involved.

  7. #7
    Join Date
    Jan 2011
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    105

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    Quote Quoting Newtons_Apple
    View Post
    This process will add up to many thousands of dollars in what I see as unnecessary fees (making the real winners in cases like this as always, the lawyers)
    Sounds like the surveyor would make a few dollars off of this conflict, too, eh?

  8. #8
    Join Date
    Aug 2010
    Location
    Maine
    Posts
    206

    Default Re: Easements: Neighbor Selling Property W/ Encroachment on Property W/ Driveway/Park

    Quote Quoting Harriet
    View Post
    Sounds like the surveyor would make a few dollars off of this conflict, too, eh?
    A survey may or may not be necessary depending on what if any data already exists.

    The point I was trying to make (poorly) is it's always better for the adjoiners to sit down and hammer out an agreement they can both live with, rather than go through the stressful process of going to court.

  9. #9
    Join Date
    Jun 2011
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    8

    Default Re: Neighbor Selling Property With Encroaching Driveway and Parking

    So the best thing for me to do would be to simply contact the realtor and owner and ask them why they are listing it as for sale when I never gave the easement?

    If they claim the 20 yr adverse use law, then they would have to prove it in court? Would I have to sue them for that or will they have to? Doesn't that mean I will have to hire a lawyer to defend me and I will have to incur costs?

  10. #10
    Join Date
    Jan 2006
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    38,789

    Default Re: Neighbor Selling Property With Encroaching Driveway and Parking

    If you defend your property rights (and that can be as simple as telling them to stay off your property), if they want to make a claim of a prescriptive easement, they would have to sue you. Of course, if they did and you wish to defend against the claim, it is likely you would need an attorney at that point.

    I would make it a point to speak to the real estate agent and make sure he is aware that is your property and the neighbor does not have any rights to it.

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