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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6323
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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Can someone with a right of way through 2 adjoining

Customer Question

Hi - Can someone with a right of way through 2 adjoining properties put a fence between the properties thus defining his right of way?
JA: What state are you in? It matters because laws vary by location.
Customer: Rhode Island. Previous owner tried to put through driveway to the property but was denied by the town. Do you need a permit to put up a fence?
JA: Has anything been filed or reported?
Customer: Not that I know of. Its been surveyed
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 6 months ago.

Welcome and thank you for your question. I will be the professional that will be assisting you. I just want to make sure that I am reading your question correctly. Is the person with the right of way erecting the fence or is one of the property owners fencing off access to the right of way?

Customer: replied 6 months ago.
The person with the right of way is putting up a fence
Expert:  Attyadvisor replied 6 months ago.

Usually the refuse occurs and the owners for whatever reason try to block the person with the right of way from access.

A right of way is not ownership of the land it is merely a form of permission to access the right of way and the person that has an interest in the right does not have the ability to erect any structures or otherwise take control of the land of another person. Do you have a copy of the right of way agreement?

Customer: replied 6 months ago.
no.
Expert:  Attyadvisor replied 6 months ago.

Is the right of way showing up on a deed?

Customer: replied 6 months ago.
i believe so
Expert:  Attyadvisor replied 6 months ago.

"Property easement law, also known as right of way laws, describes the rights to use some part of a property for a specific purpose, types of easements, and easements vs. right of way. A survey will define the property lines to hopefully prevent any questions of land ownership or the need to file for prescriptive easements.

An express easement may be contained in the deed to the property or in another document. Some examples include:

  • A utility company can run power lines on a property
  • Adjacent property owners may enter into an agreement to share a common driveway that extends over both properties.

An implied easement or prescriptive easement may arise when a use of property continues for a certain period of time. For example, if a neighbor has been crossing the corner of a property for years, the neighbor may have acquired a prescriptive easement to continue to cross the property in the same manner.

The property right of way laws allow someone the right to travel across property owned by another person."

http://www.realestatelawyers.com/easements.cfm

If there is permission to do more then just allow someone the right to travel across the property, for example placing a structure on the right of way this would need to be specifically stated. Otherwise it is merely a right to travel across property.

Who has the right of way?

Expert:  Attyadvisor replied 6 months ago.

Where in Rhode Island is the right of way located? You can check what is stated in the recorded right of way/easement with the Recorder of Deeds. If it shows up on your survey it must be recorded. The recorded document would set the information on the permitted use of the right of way.

In Rhode Island “There are two kinds of easements: 1) affirmative and 2) negative. Affirmative easements give a person or entity the right to use the property of another for a specific purpose. Examples of affirmative easements are:

  • Right-of-way Easements;
  • Driveway Easements; and
  • Beach Access Easements.

A negative easement prohibits the property owner from using his land in a particular manner. Negative easements are far less common than affirmative easements. In modern residential real estate practice Covenants, Conditions, and Restrictions (CC&R's) typically govern the issues which previously were set forth in negative easements. An example of a negative easement is the prohibition against placing an above-ground pool on a property.

Easements in Rhode Island

Easements are divided into two classifications depending on the benefit they bestow.

  1. Easements Appurtenant – An easement appurtenant benefits an adjoining parcel of land regardless of its ownership. Easements appurtenant are characterized by the existence of a dominant estate and a servient estate. The land which benefits from the easement is referred to as the dominant estate. The land which is burdened by the easement is known as the servient estate.

 

  1. Easements in Gross – An easement in gross benefits a particular individual and is considered a personal right that cannot be sold, assigned or inherited. An easement in gross may also be granted for the benefit of a specific company or business entity.

Express Easements – An express easement is established by the execution of a written instrument such as a deed or a contract. A well-drafted easement agreement sets forth the location, dimensions, and permissible uses of the easement. Moreover, an easement agreement should include provisions which address liability, payment of property taxes and insurance, liability and indemnification, termination, and abandonment.

Prescriptive Easements – To establish an easement by prescription, a claimant must show that his use of the land over which he claims the easement has been actual, open, notorious, hostile and continuous under claim of right for a period of ten years.

Easements By Necessity – To establish an easement by necessity, a claimant must show that the easement is reasonably necessary for the convenient and comfortable enjoyment of the property as of the time of severance. In deciding whether to grant an easement by necessity, Rhode Island courts will consider whether an alternative to the easement could be had without unreasonable expense or trouble.

Easements By Implication – Whether an easement by implication exists depends on the intention of the parties at the time of the severance of the unity of title and is predicated on the theory that when a person conveys a parcel of land, he intends to convey or retain whatever is necessary for the use and enjoyment of the land conveyed or the land retained. The test of necessity is whether the easement is reasonably necessary to the use and enjoyment of the property as it existed at the time unity of title was severed.

Easements By Estoppel – To establish an easement by estoppel a claimant must show that:

  1. An affirmative representation or equivalent conduct on the part of the person against whom the easement is claimed which was made with the intent to induce the person to whom such representation is made to act or fail to act in reliance thereon; and
  2. Such representation or conduct in fact did induce the party claiming the easement to act or fail to act to his detriment.

Easement Property Boundary Issues

Easement issues arise for a variety of reasons and can be very time-consuming and costly to resolve. Easement disputes frequently involve questions of:

  • Misuse;
  • Interference;
  • Abandonment; and
  • Trespass.”

http://www.realestatelawyers.com/resources/real-estate/land-use-zoning/Rhode-island-easement-law.htm

Fences:

As far as fences, each municipality has their own local ordinances and codes that set out the requirements for putting up a fence. For example in Narragansett putting up a fence requires a permit http://www.narragansettri.gov/Faq.aspx?QID=84 West Warwick also requires a permit

Sec. 5-53. - Permit required.

A permit must be obtained by the property owner of his agent prior to erecting a fence or effecting major repairs that are regulated by this article. Both the property owner and the person erecting the fence may be held equally responsible for obtaining said permit. The fee for said permit shall be set from time to time by resolution of the town council.” https://www.municode.com/library/ri/west_warwick/codes/code_of_ordinances?nodeId=PTIIICOOR_CH5BU_ARTIIFE

Providence has their own rules https://www.municode.com/library/ri/providence/codes/code_of_ordinances?nodeId=PTIICOOR_CH5BUSTAP_ARTIVFE

Expert:  Attyadvisor replied 6 months ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter as it would be my pleasure to assist you.

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Expert:  Attyadvisor replied 6 months ago.

Thank you for using JA

Expert:  Attyadvisor replied 6 months ago.
Do you have any additional questions for me?
Expert:  Attyadvisor replied 6 months ago.

Please ignore the additional services request. If you have any additional questions please do not hesitate to let me know. You may not be aware of the fact that the Attorneys on the site do not receive credit for the time we spend working with a customer unless the customer rates our service positively. Thank you for your consideration.

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