Common sense – that’s what guides most of us, most of the time, and that’s a good thing. However, when it comes to protecting property rights, common sense solutions can sometimes be dangerous. This is because some rules of property law are counterintuitive, such as the rules relating to prescriptive easements. (A prescriptive easement is a legal right of access that arises from longstanding open use of property, hostile to the property owner’s rights or under claim of right, including a claim based on a mistaken belief that a legal right already existed.)

Take, for example, the case of the property owner (we’ll call him Joe) whose neighbor (we’ll call her Jane) told him he could no longer use an access road that crossed Jane’s property because Jane intended to plant vineyard over the road and surrounding area. Joe, however, had been using that road for over 20 years to service a vineyard on his property. For the first 15 years Joe had been using the road, he believed he had a right to use it and he had never asked permission from Jane or her predecessor. In addition, for the whole time Joe had been using the road, neither Jane nor her predecessor had ever taken steps to protect their property from the creation of a prescriptive easement. (Those steps are a topic for a later blog.) Under the rules of law relating to prescriptive easements Joe could have protected his right to continue using the access road in dispute, but his lawyer’s ability to do that after the dispute arose was compromised by the fact that Joe had previously pursued what he believed to be a common sense solution to his problem a number of years before he sought legal advice.

Specifically, a few years before the dispute arose with Jane, Joe discovered that he did not have a deeded easement over the road in question. Common sense told Joe he should do something to confirm and preserve his right to use the road. As Joe put it when he later explained it to his lawyer: “Don’t worry, when I found out I didn’t have a deeded easement, I made sure I protected my right to use the road by contacting my neighbor (Jane’s predecessor) and confirming that I had his permission to use the road. I then documented that permission in a letter.” Pleased with his proactive approach to the problem, Joe proudly produced a copy of the letter for his attorney, and then watched in dismay while his attorney sadly shook his head and told Joe he should have seen an attorney before doing anything.

While common sense told Joe that getting his neighbor to acknowledge that Joe could continue using the road, the law did not. What Joe didn’t know was that a prescriptive easement cannot exist when the use relied on to support the creation of the easement was permissive! Put another way, permissive use CANNOT be hostile or under a claim of right and therefore will not support the existence of a prescriptive easement.

Although Joe could still assert his claim to a prescriptive easement based on (1) the rule that a prescriptive easement “vests” immediately after 5 consecutive years of adverse use (which in his case had occurred long before he secured permission), and (2) the fact that his more recent request for permission was based on a mistaken belief that it would preserve his right to use the road, his common sense self help effort made it more difficult for his attorney to protect Joe’s easement because Joe had inadvertently created evidence that his neighbor could use to try to prove that Joe never really did believe he had a right to continue using the easement (or else why would he have felt he needed to ask his neighbor’s permission?).

The moral of the story is this: When it comes to the law, particularly some of the more antiquated rules relating to real property, talk to an attorney with experience in the particular area of the law involved before you do what common sense tells you.

Coming up: Could Jane and her predecessor have done anything to protect against the creation of a prescriptive easement in Joe’s favor? Yes…

For more information or assistance on real property issues contact Paul Carey at [email protected]

Copyright Dickenson Peatman & Fogarty at www.lexvini.com