Q. Our neighbors have a right of way on their deed that allows them to access their property through my land. They have not used it for more than 20 years because they have a better access on the other side of their lot. However, now they want us to move a fence that comes near, but does not cross, the right of way. They say because it hasn’t been used in all this time, they are entitled to claim 10 more feet of property on their deed. Can this be true?
A. Your inquiry invokes areas of easement law (rights of way are a form of easement) that rely upon specific details of the deed language and facts surrounding use of the land over time.
When easements are expressly granted by deed, they generally last forever. An express access easement like a right of way would be written into the deed with language that most people would recognize as conveying access rights. (However, the full scope of those rights — whether access by car or for subdivision purposes, for example — can often defy the average person’s reading of the language.) If this is the type of right of way that your neighbors have, the fact that they have not used their right of way for 20 years is not enough, by itself, to deprive them of the right to access their land across that right of way.
However, there are some situations where an easement can arise when it is not expressly written into the deed. The most familiar is an “easement by necessity” which occurs when backland is sold off that can be reached only by crossing the land retained by the seller. With these easements, once the owner of the backland acquires some other access, the necessity is eliminated and those easement rights terminate. If this was the source of your neighbors’ right of way, then they no longer have rights to cross your land. There are other forms of implied easements, however, so you should consult a lawyer to accurately understand the source and scope of your neighbor’s rights.
But your neighbor is wrong that they could have gained any interest in your land beyond the original easement width simply because that land hasn’t been used by you.
The neighbors can only enlarge their easement rights by 10 feet if they satisfy all of the elements of prescriptive easement — a form of adverse possession. The law is designed to protect your ownership, so your failure to fence or actively use that area is not enough to give your neighbors rights in your land. To have any rights in the additional 10-foot strip, the neighbors would have to show that they or their predecessors openly and visibly made actual use of that area for 20 years, without any permission to do so.
As noted at the beginning, the wording of your deed and the actual history of the land use will be the determining factors, and you really should review this with a land use attorney. Also, if you happened to have kept any letters between your family and the neighbors regarding this issue, have the attorney look at them as well.
This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. E-mail AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to “Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor, Maine 04402-1329, will be forwarded to the LRIS.