Heads Up If A Neighbor Free-Ranges Chickens On Your Property

[calista]

I have a friend in northern California who just moved into an older home on five acres with an established chicken coop and run. (One of the selling points!)

The neighbor on the adjoining five acres free-ranges a flock of a couple dozen heritage breed chickens. (Even better, thought my friend.)

Well, the neighbor now regularly comes up my friend's driveway to "check on the flock" at least a couple of times a day. He often stays on my friend's property, watching his birds forage and once even brought over a lawn chair to sit under my neighbor's tree adjoining the driveway. When my friend expressed her concerns about free egress to her land for WHATEVER reason, as she has a territorial dog, is a private person, and sees possible liability issues, the neighbor replied, "Oh, I have a prescriptive easement to come over here any time I want to check on my birds." He further stated that the previous owner of my friend's property didn't address the issue for years, resulting in a de facto prescriptive easement, so no permission to enter is needed.

What the h***??? A legal site online defined prescriptive easement: "A prescriptive easement arises if someone uses a portion of an owner's property openly, notoriously, and without the owner's permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway."

And then I found this:

"My neighbor’s chickens are constantly on my land. Is there any kind of easement that they could acquire over time on my property if I continue to allow this?”

Interesting question! The sort of thing you’re talking about is called a prescriptive easement, and it arises when someone uses the land of another for a minimum period of time, openly and without permission. I’m not sure whether animals wandering onto your property could meet the requirements to create one, but my guess would be yes. The argument would be that the owner allowed his chickens to come on your land.

So what can you do about this? Well, you could build a fence to keep the chickens out, but if you don’t want to do that, you could simply give your neighbor permission.

Since a prescriptive easement requires use without permission in order to be created, giving permission defeats the argument. If you do this, I suggest that you give the permission in writing, specifying that you reserve the right to withdraw your permission, and get your neighbor to sign off acknowledging that his use of your property is by your permission.

Of course, you need to be aware that permission doesn’t eliminate a prescriptive easement once it’s created. For example, if the minimum period in your state is 5 years, and you give permission for a use 3 years after it starts, you’ve cut off your neighbor’s easement argument. But if you give permission 6 years after the use started, your neighbor already has a prescriptive easement, and your permission doesn’t destroy it.

http://www.dearesq.com/can-allowing...n-my-land-create-an-easement-for-my-neighbor/

What should my friend do? She's naturally upset with the LOSS OF PRIVACY and the dog issue, not the free-ranging chickens. Not to mention that her neighbor didn't even ASK for continued permission and maybe set up a schedule of visitation, or something.

Is she out of luck and has to keep her dog chained up? (And no longer garden in her skivvies?)

 

[Kittymomma]

Tell her to double check the laws. I don't think he's right in any case, but I also seem to remember WA doing away with that a few years ago--too many elderly people were losing chunks of their property to "helpfull" neighbors mowing their lawns.

ETA: Oops, I see your freind is in CA, not here in WA. Have her check her title too and see if there is anything about an easment, I think this guy is just blowing smoke though. She may have to post the property and get a restraining order, major pain, but better then living with this guys delusions.

 

[WingingIt]

Double post, sorry.

 

[WingingIt]

I'm not a legal expert at all, but it seems to me that he had a prescriptive easement against/with the PREVIOUS owner, not your friend. If it was a 'real' legal easement, it would have been recorded and they would have found it when they did the title search. Does she have any lawyer friends who could write a letter for her?

 

[Wynette]

Perhaps she should build a fence.

 

[ThreeBoysChicks]

Get an attorney. I had a co-worker who basically lost 2 acres of land because of this very thing. Her property had a old stone fence running through it. The neighbor behind had run cattle on that property for 15+ years. When she bought the property and went to ask the neighbor to stop allowing his calls over, he said it was his land, she lost the case and lost 2 of the 5 acres of land that she had purchased.

 

[willkatdawson]

I have heard of just such a situation. In an older neighborhood beside a high school a couple bought a home and noticed MANY teenagers were cutting through their yard between their hose and the next door neighbors instead of going down to the main road and walking down the sidewalk in front of the school. The new home owners asked the kids to no longer cut through. They said the kids were leaving trash and making a lot of noise just outside the couples baby nursery. The neighbor hood parents hired a lawyer and even though the previous owner was aware and gave permission to cut through while they owned the home and the new owners were not told of this agreement the parents won and the new home owners were made to allow the kids to continue. They will now have to disclose this to anyone they try to sell their house to.

 

[Mervin]

Step 1. Post "No Trespassing" Signs

Step 2. Post "Beware of Dog" Signs

Step 3. Station big, toothy canine sentry close enough (appropriately restrained of course) to the aforementioned area that the neighbor's chicken "choose" not protest the dissolution of the prescriptive easement

Your friend holds a deed to the property and, so long as having a dog is within the ordinances of his/her community, the burden of proof/legal action becomes that of the neighbor. Your friend is simply using their property as they see fit.

 

[babsboys]

California law for prescriptive easement is 5 years....but

There is a growing trend in California courts to deny a prescriptive easement in situations involving boundary encroachments, even where the encroachment is one that easily could be the subject of a written easement. These cases derive from the 1975 appellate court decision in Raab v. Casper

My suggestion would be to send him a registered letter informing him he will no longer be allowed onto the said property. If he continues call the police and file a complaint.

 

[Country Cluck]

The ONLY thing that will solve this is a fence. I've been through this myself and battled with my neighbor for 2 1/2 years and finally sheeled out the money for a fence best $3500 I have EVER spent! I would have paid 100 times the amount for the peace I have now. My husband and I bought and built our house on property that had sat vacant for 15+ years and everyone used it for whatever they wanted like a dump, grazing animals and a play ground. Once we moved in people still treated our property as though it was their own like I had kids skate boarding down my newly paved driveway and my neighbor routinely road his horses across my lawn and let his cows escape and roam on to our grass. Once they even broke the lid to my brand new septic tank and trashed all of the flowers in my front yard. What did the guy do? He told me where I could get replacement flowers at a discount and told me that the lid was "like $5 to replace."
At any rate this went on and on and on repeatedly until my husband found me screaming at my neighbors son about how I would shoot the next cow that wandered on to my property and how I was going to sue them for property damage. That was enough for everyone and the very next day my husband called and had a fence built and 2 days later it was complete. I have never had a skate boarding kid or a cow in my yard since and yes the cows still get out on occasion, but now they trash my neighbors property instead (he deserves it.) Good fences build good neighbors.