Permissive Use and Easements: What To Do When a Neighbor Uses Your Land

Allowing a neighbor to access your property can lead to legal headaches.  Letting neighbors use your property to hunt, fish or hike may seem harmless--even neighborly.  However, if their use becomes excessive or the neighbor begins altering or building on your property, you may have a difficult time selling your property or keeping your neighbors out. This is especially true if the authorized use is not in writing. Over time, what began as an act of neighborly accommodation could result in an easement claim that will diminish your property rights. 

Easements and Consequences for Property Owners

An easement is a 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.  This is 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 that could have been avoided with a small bit of legal planning and a large dose of foresight.

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 claim 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 (in certain circumstances) actually owns the easement. The situation can become even more troublesome when it involves a neighbor that may be using land 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 neighbor permission to use your property for access to fishing, hunting or any other reason, proceed with caution. 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 unequivocally state that the use is solely by permission. The agreement, which should be prepared by a competent real estate attorney, should also state that the property owner could revoke the permissive use at any time. Remember, should a conflict arise, a 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. Make sure there are no questions 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.” In many states, a notice of permissive use may be recorded on one's property. This will help avoid future conflict over what type of access is or is not authorized. 

Getting Help

If you want to protect your home against unauthorized use, it is advisable 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.