This blog is a follow up to my previous blog titled “Establishing a Prescriptive Easement”. The previous blog explained the possibility of a prescriptive easement as a way to remedy a neighboring landowner cutting off an access road which you had been using to access your land. In a nutshell, the prescriptive easement allows for a person to claim a limited interest in the land (the road on the land). This allows them to continue to utilize the easement road to access their property because they have been doing so for at least 20 years previously.
The prescriptive easement has upsides. One upside is its permanence. Once established, the easement holder can typically utilize the easement perpetually. However, the prescriptive easement has downsides as well, namely, the possible costs associated with bringing a quiet title action. Depending on the defendant’s willingness to defend the action, the costs associated with the lawsuit can result in attorney fees exceeding tens of thousands of dollars.
Additionally, there is no guarantee that, at the conclusion of the lawsuit, a prescriptive easement will be awarded. This may lead the parties to feel as though time and resources were wasted. Fortunately, the prescriptive easement through a quiet title action is not the only possible solution to solve this issue.
An express easement is a way around the costs and uncertainties associated with a quiet title action. An express easement essentially allows you and your neighbor to create an easement with terms that are mutually agreed upon. Likely, your neighbor will want to be paid for the easement. This should not be a deterrent to come to an agreement. There is a good chance that both parties will still come out ahead by avoiding the costs and uncertainty a lawsuit will bring.
Lastly, if your neighbor has already prohibited your use of his property, commencing a lawsuit will not encourage cooperation between you and your neighbor. Therefore, working toward an express easement first may be the best route to take.
If you intend on establishing an express easement, please contact us!