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J. Warren
J. Warren, Lawyer
Category: Real Estate Law
Satisfied Customers: 2210
Experience:  Experience in residential real estate and commercial leases.
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State:New Hampshire We own and reside in a house we bought

Customer Question

State:New Hampshire
We own and reside in a house we bought 7 1/2 years ago. We have a problem with neighbors that moved in 2 years ago. It has only come up now,because they don't want us to be (grandfathered in) . We have always used a 7foot space on the side of our house to walk to our shed and back yard. Our neighbors now want to put up a 6 foot fence 2 feet from our house where their boundary pin is. This would be a new fence. No fence exists now. She doesn't want to deal with an easment because she doesn't want lawyers. I want to know if we have any rights here. If she put up a fence it will leave us 24 inches to walk. Not enough space for my wheel barrow even. I am also concerned about access in case of a fire emergency. I have two windows which would be covered by the fence being so close. There is already some kind of easment for the power company to maintain a telephone poll on our property. Please advise.
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
When we bought our house it said that we had a shared drive way which would have crossed the same boundary.
We ended up building our own driveway and not using the shared one. The owners before us used it.
Customer: replied 1 year ago.
If we apply for an easment who oks it?
Expert:  J. Warren replied 1 year ago.
Hello my name is ***** ***** I look forward to providing you information. Please note:
(1) this is general information and is not legal advice. I never propose a specific course of action. There is no attorney-client relationship or privilege that is formed when communicating to an expert on this site. The site repeats this disclaimer numerous times. By continuing, you confirm that you understand and agree to these terms; and
(2) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry you are dealing with this situation. Unfortunately your rights are limited in this situation. In order to claim that you have a prescriptive easement (that is like adverse possession - use property for so many years it can be claimed as titled property adverse to the true owner) you would have needed to use the area of 20 years.
An issue here to explore is to assure 1) that the shed is within the code for being setback far enough off the property line and 2) what is the requirement of the setback for the fence from a structure. Assuming that both setback requirements have or will be met, about the only thing that you can attempt to achieve is to negotiate that she leave you enough space between the fence and entry access to the shed. If both structures are within ordinance codes, then a compromise will have to be worked out.
Now if the fence will impede on the easement access to the utility company, that is leverage beneficial to you. The telephone company could be contacted and with regards ***** ***** attempt to restrict its access.
I just saw your additional posts. If there is an easement for a shared driveway in place but that use has been abandoned, then the easement could be extinguished. In other words, if you asserted an easement exists (which in fact sounds like it does) and if she were to build a fence, you could petition the court to have it removed. However, she could assert a defense that the purpose of the easement was for access for vehicle to enter property, that no longer is the case and therefore the easement is abandoned. You do not know how a judge would decide, but she arguable has a pretty strong argument based on the fact a new driveway was poured and the use of the area is now ingress/egress by foot to a storage shed. Arguably you have a potential claim to petition to stop her from putting up the fence. However, you can tell her this but if she puts up the fence, you will eventually have to go to court to resolve the dispute.
As far as easements, she would have to grant you an easement or the current easement by agreement could be modified to accommodate your access to the shed. A court can order an easement but as discussed above the elements of a prescriptive easement are not met and so the argument would be by necessity. This could fly as you can't access the shed if a fence is there. Bot***** *****ne is, if something is not worked out amicably this will need to head to litigation which never makes for good neighbor relations and economic sense.
Unfortunately, your legal issue doesn't fit nicely into a box. What you have are arguments and merits to both sides. And while you are attempting to be reasonable, that does not guarantee the neighbor will be. In this case, even if you stated you think a judge could rule in your favor to either amend the current easement or prevent the fence from being built, she can decide to ignore this and do as she pleases putting you in the position to have your day in court.
My suggestion is you both attend a community mediation session in an attempt to resolve your differences. This is a very economical way to get to an end result without legal fees, time and energy spent litigating a matter. Here is a link to a mediation center: hessgehris.com/practice/mediation/ and also: www.mediate.com/NewHampshire/
All my best & encouragement.
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Expert:  J. Warren replied 1 year ago.
Please let me know if I can provide further information.

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