Phillips & Angley

Is your neighbor entitled to a prescriptive easement from you?

Do you know where your property begins and ends? If you own a significant amount of land, you may not know, and your neighbor may not either. For one reason or another, you decided to find out exactly where the boundary between properties lies.

When you did, you discovered that your neighbor is encroaching on your property and probably has for years. Whether your neighbor built a structure such as a fence, barn, garage or something else, it lies partly or wholly on your property.

A short look at adverse possession

Under this legal concept, your neighbor may gain rights to that portion of your property upon which he or she is encroaching. In order to make a case for adverse possession, your neighbor would have to meet the following general requirements:

  • Your neighbor is actually trespassing on your land.
  • Your neighbor isn't hiding that he or she is on your land.
  • Your neighbor's encroachment is continuous.
  • Your neighbor's encroachment must continue for the number of years outlined in Massachusetts law.
  • Your neighbor did not receive permission to use your land.

It doesn't matter whether you recently bought the land or owned it for years when it comes to starting the clock on the adverse possession by your neighbor. What counts is how long your neighbor has encroached on the land you own. If the time has not run, you may be able to get your neighbor off your land. Depending on the circumstances, you may decide to provide your neighbor with an easement for some compensation to you.

Your neighbor may receive a prescriptive easement

If you take your neighbor to court, and he or she proves the elements of adverse possession, the court may provide your neighbor with a prescriptive easement to that portion of your land. You still own the land, but you cannot use it due to the easement. If you are okay with this eventuality, then you could work this out without going to court. You could have the documentation drawn up in such a way that your rights remain protected.

If you think you may still have time to avoid this scenario, you may want to address the situation as quickly as possible. Depending on your relationship with your neighbor, the fix may be easy. If you cannot reach an amicable resolution, you may need further advice and assistance in order to find a solution that protects your rights to your property.

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