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Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 41668
Experience:  Texas Attorney for 30 years dealing in real estate
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Our neighbor has filed a civil suit against us over an

Customer Question

our neighbor has filed a civil suit against us over an easement. We were not aware of said easement while purchasing our new home and have noticed several pieces false information/missing information in the civil papers against us. Several people have advised us to get a land survey. Do you have any advice or insight into this matter?
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: Georgia
JA: Have you consulted a lawyer yet?
Customer: Not yet, we are in financial bind since we just got married and moved.
JA: Is there anything else the Lawyer should be aware of?
Customer: the neighboring property is connected to other piece(s) owned by the plantiff and there are no existing drive ways to the land from ours. No deed or proof of easement was shown to us prior to being served civil papers. The plaintiff demands that we remove a wooden gate that we put up and has only locked once for a period of two days while we were out of town. on may 23rd the neighbor left a letter on our door demanding the removal of our gate and within a little over 24 hours he came to our house at 8:30pm to demand once again removal of gate without providing any documentation. he did not provide us enough time for our attorney that handled the new house purchase to find any paperwork on his claim. on june 9th I was blocked from leaving my drive way and was approached by the neighbor to discuss the gate once more. we made reports on both instances.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. Ray here to help you tonight.

Can you tell me if he is claiming it is an express easement--that means there is a deed somewhere or easement by necessity here.That means that they claim easement by use here??

Expert:  Ray replied 1 year ago.

An express easement is created by deed, contract, or other written instrument. Under California law, the use of the easement is determined by the contents of the document which created it. If the language of the document which created the easement is clear and unambiguous, courts are prohibited from considering extrinsic evidence in ascertaining the intention of the parties.

Under California law, an easement by prescription may be established upon a showing by the claimant that he has used the easement openly, notoriously, and continuously for a period of five years. The claimant's use of the easement must be hostile or adverse to the owner. If the owner has given the claimant permission to use the land, an easement by prescription will not be found.

Expert:  Ray replied 1 year ago.

You will need a local real estate lawyer here to dispute this.

And I am sorry let me get you Georgia law here but the concepts are the same.

Expert:  Ray replied 1 year ago.

Under Georgia law, a claimant must prove four elementsbefore a court will find that he has acquired an easement by prescription

  1. That his use of the easement has been uninterrupted for a period of seven years or more;
  2. That the width of the easement does not exceed 20 feet;
  3. That the width of the easement has not deviated from its original width; and
  4. That he has kept the easement open and in repair for seven uninterrupted years.

The seven year statutory period for prescriptive easements applies only to improved lands. For wildlands, the statutory period to acquire a prescriptive easement is twenty years.

I am assuming they are claiming easement by prescription or use over time rather than an express one in a deed somewhere.

Expert:  Ray replied 1 year ago.

Please let me know if you have follow up, sorry for the confusion as you can see Georgia law on this issue is basically the same.

Expert:  Ray replied 1 year ago.

Please let me know if you have more follow up.If you can positive rate here it is always much appreciated.

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