# Neighbor blocking easement with fence! What to do?



## DYI hunting (Aug 26, 2010)

My grandfather's driveway has been in the same location over 40 years.  It passes over part of the neighbor's land and the previous owner had a gentleman's agreement with him which now meets the legal definition of prescriptive easement.  The new neighbor had words with my 86 year old grandfather, got mad and is in the process of putting up 3 strand barbed wire fence.  Do we call the law, start taking it down ourself, or just call a lawyer?


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## fatboy84 (Aug 26, 2010)

Do NOT start taking it down by yourselves.

I would check with a lawyer before doing anything.  How much of the driveway goes across the line?


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## DYI hunting (Aug 26, 2010)

There is a 20 foot section of driveway that is half across the line.  It is almost impossible to get past the fence.  

I figure it is a civil matter and we must take it up with the court and a police office will not get involved?


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## fulldraw74 (Aug 26, 2010)

Call a lawyer....


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## Hut2 (Aug 26, 2010)

I'd talk directly to the sheriff of that Co. or police chief ( whichever applies to location ) Good luck!


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## Catfish369 (Aug 26, 2010)

Probably time for a new driveway plan.


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## win280 (Aug 26, 2010)

My dad was in that same situation with a commercial property next to his home. 
It would be a civil matter .


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## rjcruiser (Aug 26, 2010)

I'd talk to the neighbor first and see if you can calm him down.  Let him know that he needs to re-think his fence plan or he'll have a bunch of legal fees to pay for.  Let him know you'll sue not only to have him take it down, but also any legal fees you have to pay for.


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## gadeerwoman (Aug 26, 2010)

Few sheriffs or police chiefs have a degree in law...they only uphold the laws as they are written. They won't know beans about the legality of this issue.
Sounds like some cool heads need to meet between the family and the neighbor first and foremost. If that doesn't produce satisfactory results then they need to talk to a LAWYER.


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## earl (Aug 26, 2010)

If he has had the drive in place for more than 7  years ,I believe he owns the property by immanent  domain law . Sounds like your neighbor needs to calm down or incur some serious legal fees.


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## fulldraw74 (Aug 26, 2010)

earl said:


> If he has had the drive in place for more than 7  years ,I believe he owns the property by immanent  domain law . Sounds like your neighbor needs to calm down or incur some serious legal fees.



I may be mistaken but i think eminent domain can only be used by the government not individuals.


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## JustUs4All (Aug 26, 2010)

Prescriptive easements usually require an adverse possession.   If the neighbor knew of and agreed to the use of the land there would be no adverse possession.  
Taking the fence down yourself would be a mistake.  You probably need to talk with the neighbor and make new driveway plans.


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## jigman29 (Aug 26, 2010)

My cousin bought a place and the driveway has always been across the neighbors property.When another man bought the neighbors place they blocked his drive but when they went to court since he had the drivewaythere for years it was considered legal right of way and the neighbor had to unblock it.


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## earl (Aug 26, 2010)

fulldraw74 said:


> I may be mistaken but i think eminent domain can only be used by the government not individuals.





I might have my terminology wrong. We had to cut the corner off of a 5 story parking garage because the lady beside the property had a chain link fence up for over 7 years. The owner offered to send her on a European vacation until we were finished and she wouldn't budge. Not a smart thing to tick off old folks.


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## Coweta Redneck (Aug 26, 2010)

Call an attorney... a good real estate attorney. He could probably file an injunction to have the fence stopped. It is a prescriptive easement, not adverse possession. If the fence is already finished call the sheriff and say he blocked your driveway. Go to tax assessors office and get copies of old aerial photos of property showing driveway. This is easy to get resolved. Do not move the driveway whatsoever, or you could lose the right to use it.


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## The Original Rooster (Aug 26, 2010)

Move your driveway, it'll be cheaper, quicker, and easier in the long run. Getting a lawyer will only make the lawyer richer, your neighbor madder, and you still may lose.


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## Melvin4730 (Aug 26, 2010)

Does your Grandfather have another way to and from his property? In Georgia, you cant have a "land locked" tract of land. Legally, there has to be a place to go in and out of the property. 

It could be an Easement appurtenant 

An example of an easement appurtenant would be an easement allowing you to drive over your neighbor's property in order to reach your property. 

Prescriptive Easement
A prescriptive easement arises if someone uses part of your property without your permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Payment of property taxes is not required, as it is to obtain title by adverse possession. Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use. 

The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) hostile, without the landowner's consent and (c) continuous, without interruption for the number of years (7 in GA) required by state law. 

The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land. Prescriptive easements can be shared, that is, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive claimants.

I would do a little research on your own, like you are doing and then go sit down with the neighbor to talk about it. It sounds like your Grandfather has legal rights. If the neighbor doesn't cooperate, then go talk to a real estate attorney.

Mack McClain


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## Twenty five ought six (Aug 26, 2010)

Does your Grandfather have another way to and from his property? In Georgia, you cant have a "land locked" tract of land.  Yes you can, I really wish people would quit saying this.  Legally, there has to be a place to go in and out of the property. No there doesn't.


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## Melvin4730 (Aug 26, 2010)

Twenty five ought six said:


> Does your Grandfather have another way to and from his property? In Georgia, you cant have a "land locked" tract of land.  Yes you can, I really wish people would quit saying this.  Legally, there has to be a place to go in and out of the property. No there doesn't.




What is an Easement by Necessity?
An easement by necessity allows an owner of a landlocked parcel to cross over another's land in order to access a public road.  Easements by necessity are know as appurtenant, which means that they benefit a particular piece of land, rather than an individual person.  Because they benefit the land, they run with the land.  Running with the land means that the easements pass with the title to the land.

How are Easements by Necessity Created?
An easement by necessity can only be created when land held by a single owner is severed into two or more parcels.  After severance, if any of the newly created parcels is physically unable to reach a public road, an easement by necessity may be created.  Easements by necessity are either granted to a buyer of a landlocked parcel, reserved by a seller of land who retains a landlocked parcel after the severance and sale or forced by a judge.

In most cases...You can not create a landlocked property in Georgia, because a Easement by Necessity will be created. There are exceptions to the rule.. a tract of land is divided and a portion is sold. The seller could keep the other portion that could be left landlocked. But, when he/she sells that piece of property, an easement will eventually be granted. The 1st big problem is title insurance, you will not be able to obtain title insurance.  A landlocked property could be sold, if the new owner owns the adjoining property that allows a way in and out or has access that allows ingress and egress, but then its not landlocked anymore.

http://www.legis.state.ga.us/legis/1999_00/fulltext/hb858.htm


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## Twenty five ought six (Aug 27, 2010)

Melvin4730 said:


> . Legally, there _has_ to be a place to go in and out of the property.





Melvin4730 said:


> _In most cases._..You can not create a landlocked property in Georgia, because a Easement by Necessity will be created. There are exceptions to the rule.. a tract of land is divided and a portion is sold.   http://www.legis.state.ga.us/legis/1999_00/fulltext/hb858.htm



So which is it --- there _has_ to be a an way in or is that the rule _in most cases_?

There is no blanket rule  that the owner of a piece of landlocked property is entitled to a way of necessity, and there are many properties around that are landlocked.


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## Melvin4730 (Aug 27, 2010)

There are many properties that are landlocked because the real estate laws at one time were different than what they are today. When these properties sell, an easement will most likely be created for them. Like I stated in the other post, there are exceptions to the rule, but not many.

You didn't quote the entire statement..."In most cases...You can not create a landlocked property in Georgia, because a Easement by Necessity will be created. There are exceptions to the rule.. a tract of land is divided and a portion is sold. The seller could keep the other portion that could be left landlocked. But, when he/she sells that piece of property, an easement will eventually be granted"

In the case of the Grandfathers property, he will have egress and ingress rights...someway somehow.


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## DYI hunting (Aug 27, 2010)

The lot is not land locked, but has a tree in the way of where the driveway should have been.  The driveway went around the tree back when no one knew exactly where the line was and no one minded.  Around 10 years ago it was discovered the driveway was on the neighbor's but the neighbor didn't mind.  The new neighbor did though and the young 20 something year old punk decided to argue with an old man. 

Rather than fight about it and stress out my grandfather, we just decided to let the fence stay and we are moving his driveway over to the other side of a tree that was in the way.  I hate to give in, but a man in his 80's doesn't need the stress from a neighbor that lives so close to his house.

We did have the neighbor move the fence over from the line to 6 inches on his side and he seems nice at this point.


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## JustUs4All (Aug 27, 2010)

That seems the best solution.

It is difficult for a 20 something year old to argue alone, though.


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## Wahoo Creek (Aug 27, 2010)

Good result.

With the land not being land-locked, the majority of the discussion above is not applicable.

As far as the prescriptive easement, like Just4All said, if your grandfather had permission to use the property when he passed back and forth, then no prescription.

Just saved your grandfather $$$$$ in attorney fees.  Hopefully a good relationship with the neighbor will develop.  Nothing like living beside a . . . . . you can fill in the blank.


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## GunnSmokeer (Aug 27, 2010)

*attorney*

GLAD you got it WORKED OUT.

For future reference, if anybody else thinks they have a similar dispute with neighbors over a boundary or land use, I'd get an attorney.

I don't think that the Sheriff's Office will get involved, UNLESS you cut the fence and your neighbor wants you charged with destruction of property.  That is something to watch out for.

What if you went to a judge seeking an injunction to stop your neighbor from finishing the fence, or (if he really wants a fence) making him install a gate so you can continue to use the easement?

An attorney that does litigation over real estate issues is the kind you want-- - not a "closing attorney" who just prepares paperwork.  I think having a background in civil litigation generally is more important than having lots of experience in real estate, although both would be ideal.


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## Melvin4730 (Aug 27, 2010)

DYI hunting said:


> The lot is not land locked, but has a tree in the way of where the driveway should have been.  The driveway went around the tree back when no one knew exactly where the line was and no one minded.  Around 10 years ago it was discovered the driveway was on the neighbor's but the neighbor didn't mind.  The new neighbor did though and the young 20 something year old punk decided to argue with an old man.
> 
> Rather than fight about it and stress out my grandfather, we just decided to let the fence stay and we are moving his driveway over to the other side of a tree that was in the way.  I hate to give in, but a man in his 80's doesn't need the stress from a neighbor that lives so close to his house.
> 
> We did have the neighbor move the fence over from the line to 6 inches on his side and he seems nice at this point.




Sounds like its going to work out


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