Day: November 28, 2019

Ok–So You Own The Property. But– Hey! There Are Others Using It! How Can That Be?

Ok–So You Own The Property. But– Hey! There Are Others Using It! How Can That Be?

You own the property but others may and do use it.  This use may be legal or illegal.  

How does this come about?  Access to your property may be by easements (generally legal), building restrictions, zoning (generally legal) and encroachment (may at times be illegal).

And who are these other people that can have access your property?  They may be people reading meters or the telephone company checking lines. 

How does this happen?  Again, by easements, zoning (and building restrictions) and encroachment.  A brief glimpse as to what this mean is summarized below.

Easements onto your property are the most common.

Basically, an easement is the right to use another’s land.  It is an interest in another’s land owned by another person consisting in the right to use or control the land, or an area above or below it, for a specific, limited purpose.  An easement is not a lien.  When there is an easement it is considered encumbered.

One kind of easement is an Easements that run with the land (appurtenant).  This means the easement belongs to or runs with the property and when sold the new owner has the same rights to the easement as the seller.

Generally an appurtenant easement is created for and benefits the owner of adjoining or attached land.  

Example:  A neighbor works or lives behind your property and uses your driveway.   The owner of the front parcel cannot block or hinder the right to the property of this neighbor.  This easement is created for and benefits the adjoining property (neighbor’s property).

Easements are created by grant (writing); implication by law; and long use (called prescription). 

  • Grant easements have to be notarized and recorded to be effective (considered as an easement).
  • Implication by law, ie., the right to use land for the extracting minerals, oil implies that you have the right of surface entry in order to extract the minerals.
  • Long use (gain by prescription) can be obtained after 5 years of uninterrupted use of another’s land; no confrontation or property tax payments required.  Long use necessitates the following:
  • Open and notorious use
    • Uninterrupted use for 5 years
    • Without permission of the owner (called hostile)
    • Under a claim of right.

2.  Building Restrictions and Zoning.

These easements are usually included in the deed at the time the property is subdivided, or may be created by a written contract.

Their main purpose is to keep use of the land uniform throughout certain tracts (or areas) of land.  Subdivisions and condominiums usually include deed restrictions as a method to promote the aesthetics and economics of the project.

These (private) deed restrictions and bylaws are usually recorded separately and are only referenced in the original grant deeds.

3.  Encroachment

Encroachment is the wrongful, unauthorized placement of improvements or permanent fixtures on property by an non-owner of the property.  If someone encroaches on your land, they are limiting you the use of your property.  When this violation is recognized the owner has up to three years to act to correct the encroachment. Items that generally fall under encroachments often are fences, walls or building that extend over recognized boundary lines.