Allowing a neighbor to use your property for access to hunting, fishing, swimming, hiking, gardening or other use can lead to legal problems if the use becomes excessive, the neighbor begins altering your property or building on it, you change you mind for whatever reason, when its time to sell your home, or any other reason. This is especially true if the authorized use is not in writing. What’s worse is, over time, an original neighborly accommodation between adjoining property owners can result in an easement claim.
Easements and Consequences for Property Owners
Easement is the right to use another person’s real estate for a specific purpose. The most common type of easement is the right to travel over another persons land, known as the right of way. Property owners commonly grant easements for the placement of utility poles, utility trenches, water lines, or sewer lines.
Unlike permissive use, which can be revoked at any time, an easement is difficult to reverse. As such, a claim of easement can lead to expensive litigation and other costs and losses that could have been avoided had you only been aware of the different ways to protect your property.
The establishment of an easement by a neighbor over your property can devalue the property. An easement claim that has not yet been established can also devalue your property. Even if it doesn’t devalue the property, an easement clam on your home can make it difficult to sell because potential buyers may not want neighbors (or anyone else) using their land. The potential homeowners may fear future liability claims or other possible lawsuits resulting from the unwanted use of their land.
If an easement exists, the legal title to the property still remains in the name of the property owner. However, the neighbor using the property, given certain circumstances, actually owns an easement to the property. The situation can become even more troublesome when it involves a neighbor that may be using land that he does not own without the property owner's permission. Fortunately, there are several ways property owners can protect themselves against unauthorized use and future easement claims.
Protecting Your Property Against Unauthorized Use
If you decide to give your permission to a neighbor to use your property for access to fishing, hunting, or for any other reason, proceed with caution. You should create a clear and concise written agreement that states the names of the parties, the location of the property, and the allowed use. The agreement should state clearly that the use is solely by permission. The agreement, which should be prepared by a competent real estate attorney, should state that the permissive use can be revoked at any time by the property owner. Never send a copy of the letter to the neighbor and assume that the neighbor agrees. Should conflict arise, an assumed verbal agreement will not stand up in court. Protect yourself. Make sure the agreement has been signed and dated by all parties. Have it notarized if you have to. Do whatever you have to do to make sure there are no question marks surrounding the validity of the agreement. Once the document has been signed and dated, file it away in a safe place for future reference.
Another safeguard against a future easement claim is a “notice of permissive use.” Fortunately, this document can be filed away in an even safer place. In many states, a notice of permissive use may be recorded on one's property. This will help avoid future conflict over what’s authorized and what is not.
Getting Help
If you want to protect your home against unauthorized use, it’s best to work with a real estate attorney to determine the best options for your own individual circumstances. A real estate attorney can inform you about local laws and statutes, help you fill out any necessary forms, and file them for you. If a lawsuit is the only option, you have a better chance of winning your case with an attorney by your side.