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Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 42310
Experience:  Texas Attorney for 30 years dealing in real estate
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The entrance to our neighborhood, developed in the 1960's,

Customer Question

The entrance to our neighborhood, developed in the 1960's, has tall brick walls, mature hollies, grass, shrubs, irrigation and lighting.
Although the entrance improvements encroach slightly upon the first lots behind it on the right and left as you enter the neighborhood, no mention/complaint has ever been made and this area has been maintained since the neighborhood's founding by a special tax district formed at that time.
An attorney is now serving on the board of our special tax district and he states the following in objection to the area's upkeep: " I have stated the cold hard facts that the area of the front entrance is outside the boundary of the tax district, only the road surface and ROW are within the district, all that property (including the ROW) is private property and anything we do there is a trespass. Nothing in the CCC ordinance allows us to trespass on private property. "
I am wondering though, since it is the entrance to the neighborhood and it has been maintained by the special tax district for decades, does an implied easement exist?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ray replied 1 year ago.

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

What state is this in please?

Customer: replied 1 year ago.
South Carolina
Customer: replied 1 year ago.
One correction, the special tax district was formed in 1986 and one of it's 3 purposes is to maintain and promote improvements for the entrances and public right-of-ways within the district
Expert:  Ray replied 1 year ago.

Below is case law in SC that establishes what you have to prove to show you have a prescriptive easement.

"To establish a prescriptive easement, one must show: (1) continued use for 20 years, (2) the identity of the thing enjoyed, and (3) use which is adverse or under claim of right. Laychur, however, emphasized as to the first prerequisite not only that there must be a continued use for 20 years, there must be continued and uninterrupted use or enjoyment of the right for a period of 20 years." Pittman v. Lowther, 355 S.C. 536

You would need to file suit to claim the prescriptive easement once you have used it for 2o years, a suit to quiet title would be the remedy, the court awards you title to it.

Thanks again for your patience and the chance to help today.

Customer: replied 1 year ago.
who is Laychur?
Expert:  Ray replied 1 year ago.

Typo it is Lowther the part in the case.You have to have held this and made use of it for 20 years under the case law.Once you have done that you can file suit to quiet title here and claim title to it.Time would be on your side.