Quote:
The easement gets transferred with the title, it's not an agreement with a specific owner per se.
The easement gets transferred with the title, it's not an agreement with a specific owner per se.
Heads Up If A Neighbor Free-Ranges Chickens On Your Property
- Thread starter calista
- Start date
Not a Californian (and I do see that you have a reply that sounds knowledgeable from someone who is), but the neighbor would need to take it to court to perfect his easement--until a court has granted him an easement, it is merely a claim. Your friend should talk to first his title company (who should have discovered that there was a prescriptive easement) and then possibly a lawyer (although the title company should defend his title as being free and clear--that is what title insirance is for!). There are any number of things that can prevent the granting of a prescriptive easement or claim of adverse possession. One of the simplest is for the titled owner to give permission for the use of his or her property.
From wikipedia http://en.wikipedia.org/wiki/Prescriptive_easement#Easement_by_prescription
From wikipedia http://en.wikipedia.org/wiki/Prescriptive_easement#Easement_by_prescription
"prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession.
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.
Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others)."
and
"Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
"
Several months ago we had a somewhat similar situation arrise in our HOA, and I did some digging into adverse possession and prescriptive easement laws. I don't recall all the details, but I do remember that there were several variations on resetting the clock on uninterrupted use, and in some states the sale of a property without the easement or adverse possession being perfected in court resets it to 0. Posting No Trespassing signs and shooing the birds away, or sending your dog to chase them off are good starters, but an appointment with the title company as soon as possible is imperative.
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.
Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others)."
and
"Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
"
Several months ago we had a somewhat similar situation arrise in our HOA, and I did some digging into adverse possession and prescriptive easement laws. I don't recall all the details, but I do remember that there were several variations on resetting the clock on uninterrupted use, and in some states the sale of a property without the easement or adverse possession being perfected in court resets it to 0. Posting No Trespassing signs and shooing the birds away, or sending your dog to chase them off are good starters, but an appointment with the title company as soon as possible is imperative.
I'm right there with ya! DH and I have already decided that we will never, never, ever, ever buy another property that involves an easement of ANY type.
- Apr 16, 2009
- 2,105
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Quote:
The easement gets transferred with the title, it's not an agreement with a specific owner per se.
OK, then I'd think there was also a requirement for the previous owner to disclose said easement. So maybe a lawyer needs to be brought in to send THEM a letter. If the easement prevents the new owner from using it for what they purchased it for, the previous owner ought to have to pay for not disclosing that. OR the previous owner may come back and say the guy with the chickens is full of crap, never did that before the sale and help the new owner prove it and thus, get the jerk off their place.
The easement gets transferred with the title, it's not an agreement with a specific owner per se.
OK, then I'd think there was also a requirement for the previous owner to disclose said easement. So maybe a lawyer needs to be brought in to send THEM a letter. If the easement prevents the new owner from using it for what they purchased it for, the previous owner ought to have to pay for not disclosing that. OR the previous owner may come back and say the guy with the chickens is full of crap, never did that before the sale and help the new owner prove it and thus, get the jerk off their place.
I would suspect that state law would require disclosure of any known easements, and I would suspect that the previous owner is either aware and tried to ignore it, or was unaware that the neighbor was going to put forth that claim. I would think that if at any time he casually stated that "sure, you can let the chickens range onto my proverty," or invited the neighbor over to sit and watch them while they drank a cold one it would show that he gave permission, and prevented the development of a prescriptive easement.
Easements are not necessarily bad things, but when property transactions occur, any easements should be disclosed. Almost every property has easements of one sort or another: the most common is an easement for utilities--it provides services such as electricty, gas, water, cable, phone and other similar services to your property, but may also cross your property to reach adjoining properties.
Easements are not necessarily bad things, but when property transactions occur, any easements should be disclosed. Almost every property has easements of one sort or another: the most common is an easement for utilities--it provides services such as electricty, gas, water, cable, phone and other similar services to your property, but may also cross your property to reach adjoining properties.
- Thread starter
- #16
Wow, thanks for all the excellent replies full of the info needed for my friend to decide what she wants to do with this situation. I have forwarded the website info so she can become a member and read all about it.
It's too bad her neighbor came across as arrogant and condescending, as if she was supposed to know that the former owners of her property had this agreement with the guy. She told me she suspects he wanted to buy the place and is messing with her because he didn't get it.
It's too bad her neighbor came across as arrogant and condescending, as if she was supposed to know that the former owners of her property had this agreement with the guy. She told me she suspects he wanted to buy the place and is messing with her because he didn't get it.
I say put up a fence and in the meantime warn him that because she is having problems with pests she is going to put out significant amounts of rat poison and she would hate his chickens to eat it. It would be a strong hint without being a threat.
Mean dogs and loud rap music!
It would keep me away!
Quote:
he may poison her dog
he may poison her dog
- Thread starter
- #20
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