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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 27692
Experience:  JA Mentor
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In PA... I purchased a home which had a second parcel

Customer Question

In PA...
I purchased a home which had a second parcel attached to the deed that was initially described as a proposed right away for a proposed development behind my property. The second parcel was attached 20 years ago. The neighbor has used this proposed right away to gain access to his property although he is not landlocked and has more road frontage than my property. Prior owners of my home have asked him to leave and have even offered to sell him the property. He claims that it is a right of way to his property. How can I have him removed? I tried to file tresspassing charges and was told I could not.
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
The county says there is no right of way or driveway agreement on file. The neighbor has tried to tell me that he has won this battle before but there is nothing recorded by the township or the state.
Customer: replied 1 year ago.
The seller agreed to pay the cost of installing a stone driveway and we agreed to do the labor which was denied. We asked him to remove the second tree which is dead to move his driveway onto his property and it was denied. He drives in our yard, across his parking pad and into his front yard to unload groceries. I have photos.
Customer: replied 1 year ago.
Closer photo
Customer: replied 1 year ago.
Customer: replied 1 year ago.
We had a survey done in February of 2015. We moved in December 2014.
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is ***** ***** I'd be happy to answer your questions today. I'm sorry to hear about your situation.
There's a concept in the law called "adverse possession." What it says is that someone who occupies another person's land for 21 years, without permission, openly and notoriously, gains ownership of that land. When a person's use of land involves only ingress and egress, what he gets instead is a prescriptive easement. So, if that right of way has been there for 21 years, not 20, he may have a prescriptive easement.
Note that if a prior owner gave him consent to use the strip, then that time period wouldn't count. But the time people owned the house before you DOES count. The time that the second parcel wasn't attached to your land at all ALSO counts, unless the parcel was owned by the government at that point (state, local, or federal, it doesn't matter).
You have the ability to bring an action in ejectment to get a court order saying that he cannot use the right of way. If the judge rules in your favor, you'll be able to put up a fence that stops him from using it, and he can't take it down without being charged with vandalism and trespassing. If your DO file an action in ejectment, a prescriptive easement would be an affirmative defense.
If your neighbor were a reasonable person, and he actually HAD won this battle before, he would record a copy of the judgment he got with the county, or hand it to you. That would have everyone a lot of time, aggravation, and money�assuming he's being truthful about that. He can't really have "won" without some sort of documentation. This is because a permanent right to use property requires a writing. If he only had verbal permission to use the right of way, that can be revoked at any time.
What you may want to do is check the courthouse records and see if you can find any cases with your neighbor's name on them. That might tell you if they've already been to court on this and, if so, whether it's worth suing again. Courthouse documents are public record, so if it's there, you should be able to read the entire file to see what the judge said.
With that said, if your yard is NOT part of the right of way, and it doesn't sound like it is from your comments, he has zero right to drive on it. He's ONLY allowed to drive on the right of way. You could sue for trespass and ask that he be ordered to pay the cost of repairing your yard plus punitive damages. You could also ask that he be ordered to pay half the cost of putting a fence around the right of way to keep him off your yard - if he can prove that he has a right of way.
It's important that you are 100% satisfied with my courtesy and professionalism. Thank you.
Customer: replied 1 year ago.
Follow-up question...if he doesn't have anything in writing, he should have to prove that he has writes to the property. It shouldn't be the other way around, correct? I have a deed to the property in my name. So, I should be able to tell him that he cannot continue to use it. The burden of proof should be on him. At this point, there was only a verbal agreement.
Expert:  Lucy, Esq. replied 1 year ago.
Right. You only have to prove that he's using your property and you don't want him to. He has the burden of proving his defense, which is that he has a right to be there.
Verbal permission to use land can always be revoked.