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Is it considered an automatic prescriptive easement if we have used our driveway in a certain way for 40 years?
Anonymous2 views2 answers
My family has owned our home for 40+ years. We have had no problems using our driveway until our neighbor decided to install a fence on the boundry line. In order to get in & out of our auto's we haveto walk on the neighbors part of the walk, now that he has installed the fence we can no longer park in our driveway or open the doors without hitting the fence or the house. this fence was installed out of spite. We cant say it was security purpose considering it is only on 1 side of his house. the other side of his house holds the same sort of driveway & if he fenced that he would not be able to use his driveway. So my ? is, was he permitted to install that fence after 40 years of using this property the way it has been? Such an incomvenience to my elderly mother & our family.
If you've have been using his walkway for 40 years to get to your driveway, then I believe you might be right. More facts are needed. If you are correct, then you must start a declaratory cause of action to declare that an easement exists and an action for an injunction to remove the fence.
Consult an attorney.
This happens often here in Mass. and in NY when the reality of houses and driveways built doesn't match up with property lines drawn years ago. Your facts seem to establish the necessary requirements for a prescriptive easement or adverse possession. But a court action is needed to establish your rights, so please speak to an attorney. A classmate of mine practices in Brooklyn and would be excellent. E-mail me for her name. The law changed in 2008 to satte that some uses do not create adverse rights, so you need to review that law carefully with a local attorney. Also, if at any point during the required time period your use was by permission, permission breaks the adverse claim.
