Prescriptive Easement

[JAP1958]

What is the name of your state? PA

How do you officially file/record a prescriptive easement? We purchased our home 9+ years ago and now the neighboring property (owned by a developer, who built townhouses behind our property in 1981) is claiming that part of our driveway is on their property. The piece of property they own next to ours is protected wet-lands, so they can't do anything with it - and our driveway have been there for WAY more than 21 years.

What can we do to initiate a prescriptive easement and attach it to the deed, so when we go to sell the house, there isn't an issue with the driveway?

 

[LdiJ]

What is the name of your state? PA

How do you officially file/record a prescriptive easement? We purchased our home 9+ years ago and now the neighboring property (owned by a developer, who built townhouses behind our property in 1981) is claiming that part of our driveway is on their property. The piece of property they own next to ours is protected wet-lands, so they can't do anything with it - and our driveway have been there for WAY more than 21 years.

What can we do to initiate a prescriptive easement and attach it to the deed, so when we go to sell the house, there isn't an issue with the driveway?

If the area next to you is wetlands, could it be possible that they need the area your driveway is part of to provide an entrance to the rest of their property?

 

[Zigner]

You are going to want to speak to a local land-use attorney.

 

[FlyingRon]

You don't file/record a prescriptive easement on your own property. A prescriptive easement is forced upon a property owner by open, notorious, continuous, uninterrupted, adverse and hostile use for a period of twenty-one years.

Now if you want to GRANT an access easement to the other property, you can do it (it won't be prescriptive). I'd recommend having an attorney draft it and record it. Perhaps the other property developer can cover the cost. You may wish to grant permissive use of your property as well. Either of these will thwart a prescriptive easement being placed as the use won't be "hostile."

 

[JAP1958]

No - there's a road that leads to their property, so that's not at issue. How do we force the developer to grant us a prescriptive easement so we can use all of our driveway? (only a part of it is on their property)

 

[not2cleverRed]

What is the name of your state? PA

How do you officially file/record a prescriptive easement? We purchased our home 9+ years ago and now the neighboring property (owned by a developer, who built townhouses behind our property in 1981) is claiming that part of our driveway is on their property. The piece of property they own next to ours is protected wet-lands, so they can't do anything with it - and our driveway have been there for WAY more than 21 years.

What can we do to initiate a prescriptive easement and attach it to the deed, so when we go to sell the house, there isn't an issue with the driveway?

Well, the first thing that you should do is get your own survey done.

 

[JAP1958]

We can't afford to get a survey done - I'm currently unemployed, unfortunately . . .

 

[FlyingRon]

Sorry, I misunderstood. You want to get an easement to the part on their property. You can't "force them" to grant an easement. You can go to court to obtain a prescriptive easement if you meet the test as I put it. It looks like you are not going to qualify for a prescriptive easement. You can negotiate with the other party to see if he will grant you an easement.
The other option is if there is no other way you can get to a public road from your property would be an easement by necessity.

If you can't afford a lawyer or a survey, chances are you're not getting anything at this point.

 

[JAP1958]

Why wouldn't we be able to obtain a prescriptive easement? From my reading, since it's been in place more than 21 years, we technically already have the right to use that portion of the drive; we want to make it official, so there's no issue when we go to sell the house!

 

[Zigner]

Why wouldn't we be able to obtain a prescriptive easement? From my reading, since it's been in place more than 21 years, we technically already have the right to use that portion of the drive; we want to make it official, so there's no issue when we go to sell the house!

Because you can't afford it.

 

[HRZ]

IF you fail to take the legal steps to secure a prescriptive easement or written long term use by permission it is entirely possible that the owner next door simply blocks off the section of drive that is on his lands. What incentive does he have not to do so?

 

[FarmerJ]

Is there a chance that if you had a survey done to show you exactly where your lot lines are that both you and the developer could be wrong and ALL the land the driveway sits on is yours ?, Boundary surveys are vital to prove to a court that ones claim is correct. SO I suggest you at least find out how much a boundary survey would cost ( unless you have known all along where the lot lines were , but your still going to have to talk with a attorney.

 

[FlyingRon]

Why wouldn't we be able to obtain a prescriptive easement? From my reading, since it's been in place more than 21 years, we technically already have the right to use that portion of the drive; we want to make it official, so there's no issue when we go to sell the house!

You haven't made use of it for 21 years, you only made use of it for nine. You don't inherit the previous time.
And if you can't get a survey and an attorney to pursue this in court, as I said, you can't get anything. You don't just go down to the courthouse and ask for a prescriptive easement (or easement by necessity), you have to sue the owner for it (which means serving him properly, and providing proper evidence that you have the appropriate justifications which will include a survey most likely).

 

[HRZ]

Tacking of prior use for prescriptive easement in PA does NOT require a written link/tack ( It does for adverse possession but that's different )

 

[not2cleverRed]

You haven't made use of it for 21 years, you only made use of it for nine. You don't inherit the previous time.
And if you can't get a survey and an attorney to pursue this in court, as I said, you can't get anything. You don't just go down to the courthouse and ask for a prescriptive easement (or easement by necessity), you have to sue the owner for it (which means serving him properly, and providing proper evidence that you have the appropriate justifications which will include a survey most likely).

I'm surprised that the issue didn't come up 9 years ago, actually.