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Ely
Ely, Counselor at Law
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My brother and I inherited my fathers property in West Virginia

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My brother and I inherited my father's property in West Virginia (20 acres, house, garage, and barn) when he died last year. His neighbor introduced himself to me and asked if it was ok if he continued mowing the 3-5 acres that adjoin his property. He had asked for and received verbal permission from my Dad and wanted to make sure it was still ok. The reason he mows is because he likes to watch the deer. I told him it was ok with me. Now I'm wondering if I need to protect myself from adverse possession. Would allowing mowing with only verbal permission put me at risk? If so, what steps should I take to protect myself?
Thank you,
Jeff
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your family's loss.

Now I'm wondering if I need to protect myself from adverse possession. Would allowing mowing with only verbal permission put me at risk? If so, what steps should I take to protect myself?

No, you do not. First of all, adverse possession means 'squatter's rights,' which applies to the whole property. In other words, this is when a stranger takes over the whole land and its title. This is not the case here, as he has not done this.

What you may be asking about is an easement by prescription. This is when someone has used a part of the land for a time to where they have essentially earned the "right" to continue doing so even if the owner no longer wishes it. However, this does not apply here, either:

"In order to establish a private right of way over lands of others by prescription, the claimant must prove that his use of the [land] was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owners of the land over which it passes, and that the use has continued for a period of at least 20 years. Nelson v. Davis, 546 SE 2d 712 - Va: Supreme Court 2001 (internal citations omitted).

This mowing was neither adverse (against wishes of your late father), or has been going on for 20 years, I am guessing. So, the easement by prescription fails. He has no right to the land and you can stop him from mowing it without issue.

There is no need to hire an attorney for this, but simply to let him know (possibly via letter) that he should no longer be doing this. Please use REPLY if you need a sample of such a letter.

I hope this helps and clarifies. Best of luck.

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Customer: replied 4 years ago.

Thank you, Ely.


 


To follow up:


1. I thought that the period in WV was 10 years, but that may be irrelevant, given the other info you've provided.


 


2. I don't have a problem with this guy mowing, as he is elderly and apparently just likes watching the deer from his kitchen window. Also, it does keep that bit of land clear for me (keeps it from getting overgrown), and it does provide another set of eyes on the property (he could contact me if he found something amiss).


 


If I don't have anything to worry about (it sounds like the burden of proof is on him), then it doesn't sound like I need to take any action. I don't know if it would be a good idea to send him a letter granting permission to mow. Your thoughts?

Jeff,

Thank you, Ely.

You are very welcome.

1. I thought that the period in WV was 10 years, but that may be irrelevant, given the other info you've provided.

They are. I provided Virginia, not West Virginia. However, WV is almost identical: "The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof." Keller v. Hartman, 333 SE 2d 89 - W Va: Supreme Court of Appeals 1985

The requisites for obtaining an easement by prescription are well settled. Monk v. Gillenwater, 141 W. Va. 27, 87 S.E.2d 537; Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908; 14 M. J., Prescription, Sections 7-13; 28 C.J.S., Easements, Sections 10-16; 25 Am.Jur 2d, Easements and Licenses, Sections 50-61.

The absence of any one or all of such requisites will defeat a claim of a right to an easement by prescription. Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908.

But yes, the very same applies. So you have nothing to worry about.

I don't know if it would be a good idea to send him a letter granting permission to mow. Your thoughts?

Hmm... not a good idea. You do not want to give him any "peaceful" right to the land, just in case. So it is best to keep it verbal, so you can always claim that it was hostile, and then take it away... just in case. So the status quo seems to be working for the both of you.

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