Easement/access question

[maud gonne]

We are finally in our new "house" (a shell of) with a good roof and all the avocado I could ever dream of. I have a very nice neighbor who has an empty lot with a car track going thru it to the paved road. This track goes to our property and it would make all the difference in the world if we could use it. The crappy road we drive in and out of is killing our vehicle. This nice neighbor said she'd love to let us use the track for access to the paved road, BUT (big but) she can't, because it is her understanding based on research that if it was used for access or an easement then if she wanted to sell the lot down the line, or if we sold ours - in either case it would have an easement attached to it whether she wanted it or not. I said, couldn't we write up an agreement that she was just allowing us temporarily to use the access and that it was NOT an official easement. Of course I offered to pay her or do an exchange or whatever. But she was adamant that as much as she'd love to let us use it (and she truly is a generous and open soul) that because of the possibility of it becoming an easement by default, that she can't let us. I am wondering whether there are any punatic lawyers or realtors out there who might comment on this. I do so want the access - it would make a world of difference. (She doesn't want to sell the lot.)

[chip]

Hello,
you might ask for a lease of or
rent the right of way use.
chip,

[missydog1]

OK, as a non-lawyer (who has had some legal training and an unused paralegal certificate)... this is NOT legal advice, because I can't give that. But it's what I believe to be true, which you can verify with an attorney.

An easement created by usage is called a "prescriptive easement."

In the more extreme situation where the "user" tries to assert claim of title over the land, that is called "adverse possession."

since coming to Hawai`i I have had to research this issue, because I had a neighbor who claimed she had created a prescriptive easement by use. She had an easement that no one disputed, but she had driven outside the boundaries and claimed the additional space as hers to use by prescription.

There are several requirements that must be met to meet the burden of creating such an easement.

One is open and notorious use that is adverse to the interests of the property owner. Thus, if the owner gives express permission, that defeats the easement.

Another requirement is that the person using the easement do so "under a color of right" -- which means acting or believing that it's their right.

I read one case where tenants who later bought the property tried to claim they had created an easement during their tenancy. As I recall, the judge ruled that under Hawai`i law you cannot acquire ownership rights by paying rent.

Also, it takes 20 years of usage in Hawai`i.

My take, as a layman, is that your instincts are correct, that if you got a permissive agreement to pass, which was very clear in its language that no one intends to create an easement, and it does not run with the land, and would end at any time your neighbor decides to revoke permission, I think your neighbor would be fine.

However, convincing her of that is a whole other matter.

ETA, seeing chip's response:

you could rent or lease it, but would need to avoid all language such as "right of way" -- because that implies some sort of right and that would be dangerous territory.

Just ask to rent / lease the non-exclusive usage for vehicular passage only.

i.e. not to include parking, walking, or any use beyond vehicular passage.

Non-exclusive means that your neighbor retains her right to use it even though you are "renting" it.






Edited by - KathyH on 11/12/2007 11:16:02

[Bob Orts]

I agree that you can protect her legally by a written agreement stating the understanding along with all terms & conditions. I also agree 189.60% with Kathy that convincing her is an entirely different issue.

Property issues and disputes makes fascinating reading because of all the terminology, legal aspects, if this –than that – but not this or that, and even fraud that’s gone on over the years. When rumors, misunderstandings, and sometimes just plain old out dated thinking enters the picture; it can prevent a good person from doing the good thing. One suggestion would be to have her find an attorney she fully trust to look after and act in her exclusive interest, and offer to just pay the bill.

[missydog1]

quote:

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One suggestion would be to have her find an attorney she fully trust to look after and act in her exclusive interest, and offer to just pay the bill.

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yes, when I was thinking whether there was anything that would convince her, this idea came to mind. I didn't mention it because it is sure to cost you some money, and you didn't say what you were willing to invest in this without any assurance you would get what you want. Glad that Bob suggested it.

Bob, I too think it's a fascinating area of law.
Hawai`i is unique because of the land division made by the king to people who had never owned land nor even had the concept of owning land. Many people did not formally claim their kuleana.

Also, many people in Hawai`i allowed their property to pass by intestate succession, which made it subject to rather tangled kinship laws.

Then a lot of the easement law has to do with public access to the shoreline, Native Hawaiian access rights, etc.. It's relatively difficult to find straightforward cases of next door neighbors battling it out such as is common on the mainland.

When researching my issue, what I found was that the legal principles were repeated over and over, but I couldn't find a case that resembled my own situation.

maud,
I can understand your neighbor's skittishness. I was blown away that a reputable attorney would try to bully us with a bogus prescriptive easement claim, but he did it.

This despite the fact that she was driving over her mother-in-law's parcel and the use was clearly by permission, and we had even written a letter when we first had problems with her -- stating that she had our continued permission. And his office had not refuted that it was permissive. But later the attorney tried to claim otherwise.

I love the law, but some attorneys are such sleazoids the way they try to do their job. Like I said, no wonder she doesn't want to get anywhere near a situation where attorneys could get involved. The simplest course of action is for her to just say no, which is too bad for you who are looking for a win-win situation.



Edited by - KathyH on 11/12/2007 11:51:01

[DanielP]

I believe that if a sign was posted making the right to pass revokable and by express permission only, and that she chained off access one day per year, that she would be protected. The attorney would be the one to check with. Also, a copy of the legal statute for her to see might help to start and offer the attorney as a follow up.

Dan

[mgeary]

Maud sez:

quote:

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...The crappy road we drive in and out of is killing our vehicle...

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Why don't you fix the road on your own property, instead of trying to jump through all the hoops you're trying to jump through to drive across somebody else's property. How much would a grader cost for a couple hours work?

How do I know?

[missydog1]

As someone who still has an intellectual interest in this kind of law, I would be interested in knowing what the pertinent statutes are.

I know of:
Hawai`i Revised Statutes (HRS) § 669-1(b)

Chapter 669 is the QUIET TITLE section of the HRS.

§669-1 Object of action. (a) Action may be brought by any person against another person who claims, or who may claim adversely to the plaintiff, an estate or interest in real property, for the purpose of determining the adverse claim.
(b) Action for the purpose of establishing title to a parcel of real property of five acres or less may be brought by any person who has been in adverse possession of the real property for not less than twenty years. Action for the purpose of establishing title to a parcel of real property of greater than five acres may be brought by any person who had been in adverse possession of the real property for not less than twenty years prior to November 7, 1978, or for not less than earlier applicable time periods of adverse possession. For purposes of this section, any person claiming title by adverse possession shall show that such person acted in good faith. Good faith means that, under all the facts and circumstances, a reasonable person would believe that the person has an interest in title to the lands in question and such belief is based on inheritance, a written instrument of conveyance, or the judgment of a court of competent jurisdiction.
© Action brought to claim property of five acres or less on the basis of adverse possession may be asserted in good faith by any person not more than once in twenty years, after November 7, 1978."

I have a whole lot of citations on prescriptive easements filed away on my old computer (inaccessible at the moment). I may have more statutory backup, but most is case law. One useful and recent case is

Ryan v. Tanabe (1999) (please excuse funky citation format)
available online without any registration here:
http://www.state.hi.us/jud/ica21068.htm

this is the case I mentioned where acquisition through tenancy is addressed.

As I read it, the principle is that any prescriptive rights established by a tenant's use go to the landlord, not the tenant. If the landlord or lessee also owns the property, no rights can be acquired because one cannot acquire an adverse interest against oneself.

therefore if you rent the "driveway" your neighbor is the landlord and no easement can be established. In my lay interpretation ...

To play devil's advocate and see this through the eye of the neighbor:
at least in Hawai`i, there is a lot of burden on the landowner when it comes to kicking someone off the land, in that the landowner's recourse is to bring a Quiet Title suit if the person claiming an easement won't see reason and vacate. Expensive, even when in the right.

[John S. Rabi]

Properties recorded in Land Court are protected against all adverse claims. In regards to the easement, since your lot is accessed by a road there is no need for an Easement by Necessity. You can make an unrecorded and temporary revocable agreement with your neighbor but as others said it she might not be easily convinced.

Aloha,
John S. Rabi, ABR,CM,CRB,FHS,RB
http://www.JohnRabi.com
Typically Tropical Properties
"The Next Level of Service!"

[maud gonne]

Wow. Mahalo to everyone who responded and especially KathyH. This is a lot more good, in-depth information than I ever expected, and I truly appreciate it. I see I can keep researching to nail down some sort of agreement that my neighbor would be comfortable with. Then again, she might not want to touch it, and I fully understand that. I would also pay for an attorney if she were amenable. As for renting a grader, yes, that's a start, but it's not my driveway to the bad road that's the problem, it's the 2-3 mile rollercoaster mud puddle of a road that's the problem. Anyway... I bought the place with full awareness of the bad road, although it was the dry season then. Thank you again everyone, and keep those comments coming. Anecdotal or similar personal experiences appreciated.

Edited by - maud gonne on 11/12/2007 14:24:40