11-12-2007, 07:10 AM
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
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