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Ask Ely Your Own Question
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102369
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Property issue. It seems our driveway encroaches on our

Customer Question

Property issue. It seems our driveway encroaches on our neighbors property by about 4". The driveway has been there for approx 66 years in the same spot since it was my grandparents house, then my dad's and now mine. We had to have driveway replaced recently since the neighbor on the other side used it to go through our backyad to take out an oil tank, with our permission. When the driveway was dug up we found the original marker. They keep getting surveys which done line up with that pipe. I could care less about 2 inches or so but they want to put a fence up, down the driveway to the sidewalk for no other reason than to annoy us. They just had someone come and mark our driveway and seems they will be putting a fence right on the line (which they can do) which will make our long driveway useless and dig up the driveway that was just laid down. They did give permission to go all the way to their side fence and blocks in the front. Do we have any rights?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Can you please clarify? Are you asking what your rights are as to:

1) Keeping these 4" as your own, or

2) Limiting them to what they can do but agreeing that this part belongs to them, or

3) What exactly?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
It would be nice to keep the four inches as our own. Again it is not a matter of inches, I really don't care but it's a matter of a spite fence for no reason which will limit our driveway use. We will not be able to open our car doors when parked in the driveway. Also it can be 4' high and 50/50 which I am afraid will still limit our view of the sidewalk. They do have a fence that runs along our driveway from the back and stops right at the front of the hosue which is 6'. It is stepped 3 inches or so off the line. It seems they are planning on not connecting the two and just running the new fence on the line down the driveway
Expert:  Ely replied 1 year ago.

Thank you.

Who Owns the Inches

Likely they, if the survey is correct. Simply because you controlled it mistakenly for this time does not mean that someone in your situation can place a claim on it. The only way that a claim can be made is via easement by prescription. In order to establish an easement by prescription, a litigant must prove elements similar to those associated with adverse possession. Thus, the proponent of an easement by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years. The proponent of the easement must establish the elements by the preponderance of the evidence. * * * "`A use is adverse or hostile if a person uses the property of another under a claim of right, pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.'" HAWES REALTY, INC. v. Cupo, NJ: Appellate Div. 2012. [internal citations omitted].

The problem is that this was NOT hostile. In fact it was not intentional. So the claim on it would be weak.

Other Issues

Unfortunately, they have a right to place a fence on their part of the property, or whatever else they want to. If this inconveniences you, then this is unfortunate but you have no right to "open the car door" on their property, even if temporarily. Likewise, there is no "right to view" from one's property (with very few states having limited rights to view the beach). So they can build whatever they want to on their property, provided it really is theirs.

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Customer: replied 1 year ago.
I thought NJ law would give us rights since the property has been used in the open for 60+ years and never contested including when they moved in 15 years ago.
Expert:  Ely replied 1 year ago.

That is not quite how it works, I am sorry to say. You do not get the property just by "holding on" to it for a long time. You would have to claim an EASEMENT to be able to control it. Easements are when you can hold on to a property either by virtue of adverse possession or by the other party allowing you. See HERE. In this case, no easement is satisfied, it seems, because your holding on to the property was not against the WILL of the actual owner (which is a requirement).

Thanks again for not shooting the messenger, in advance.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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