Legal Articles


Recently, a close friend contacted me to discuss an issue he was having with his plans for a new fence.  Let’s call him Bernard for the purpose of this article.  Like many newly married couples with newly purchased homes, he and his wife wanted to install a newly built fence—mainly for the purpose of containing their loveable (yet large) dog from scaring off the neighborhood kids. 

Problem was, when Bernard went to apply for a fence permit, he learned that his backyard neighbors had built their fence short of their property line.  This left roughly four feet of the neighbors’ property outside of their fence bordering the unfenced area comprising Bernard’s backyard.  For those more visual learners, here’s a diagram depiction:


While it may seem odd, it’s not altogether uncommon for a fence to end up short of a property line.  The reality is that most folks don’t mistake the location of their property line when building a fence.  In fact, the general reason for this outcome is local, municipal laws and regulations that prevent fence construction in certain areas of a parcel.  Specific reasons for these restrictions can range from drainage areas to special use permits owned by the city.  Regardless of the particular reason, property owners encountering similar situations should do their best to investigate what restrictions and regulations might exist that could similarly impact their ability to build.  

Interestingly enough, Bernard’s situation didn’t seem to involve any of those more common legal and regulatory restrictions.  

Upon discovering the issue, Bernard’s first instinct was pretty reasonable; he thought he could ask his neighbors for permission to connect his fence to their fence, effectively eliminating any gap of unfenced no-man’s land.  However, when he brought the issue to his neighbors, he quickly learned how protective—and understandably so—folks can be of their property.  

In what was described to me as a less than congenial encounter, Bernard’s neighbors essentially told him they wouldn’t consent to connecting the fences unless there was a formal document memorializing the arrangement and preserving the neighbors’ property value.     

It was at that point that the issue found its way to my desk.  I told him what his neighbors were asking for is what’s known as an easement.  

An easement is a nonpossessory interest in land that grants limited rights of use and or access to the land.  Two separate property interest are generated upon the creation of an easement: 1) the dominant tenement, which enjoys the rights and privileges granted by the easement, and 2) the servient tenement, which grants, and is subject to, those rights and privileges.  

Unless otherwise stated in the document creating an easement, easements are creatures of perpetual duration.  That’s why it’s crucial for parties who choose to contract for the creation of an easement to include appropriate language limiting the easement’s active period to coincide with the ownership of their respective properties.  

Easements are generally created and categorized in one of three ways.  The first and most common is referred to as an express easement  An express easement is created when one party (the servient tenement) explicitly grants rights and privileges to another party (the dominant tenement) to use and access their land.  

Although it’s not unheard for a party to simply gift these rights and privileges, express easements are usually set up through a transaction or contract.  In other words, the granting party typically gets something in return for granting the easement, be it money, property, or other valuable consideration.  

Most express easements are memorialized in a formal, legal document signed by both parties, which sets out the specific rights associated with the easement, a legal description of the property to which the easement applies, the duration of the easement, etc.  Both parties will then usually each retain a copy of the express easement, and file the original signed copy with the applicable county recorder’s office.  This ensures that the easement is on record and legally binding as to the property parcels that it impacts.

The second category is known as easement by implication.  Less common than an express easement, easements by implication are those created by law where it appears that an easement was an intended result of a property transfer even though it was not specifically mentioned or addressed.  One common example of an implied easement is as follows:

Nathan has owned two parcels of land for many years.  Nathan’s home is on parcel B and the only access to it from the street is by a driveway that travels over and through parcel A.  Nathan decides to sell parcel B to Casey, but neither party addresses the issue of access when drawing up the contract for the sale of the property.  When Casey shows up on move-in day, Nathan prevents Casey from driving his U-Haul down the driveway through parcel A.  Nathan says, “This here’s private property, so find another way home, ya bum.”  Since Casey doesn’t have any other option for accessing his newly purchased parcel, and Nathan formerly used the driveway to access parcel B when he owned it, Casey is likely entitled to an implied easement to use Nathan’s driveway on parcel A.  

The last category is referred to as a prescriptive easement.  A prescriptive easement is established by the a) continuous, 2) open and notorious, 3) adverse use of another individual or entity’s land for a period of at least ten (10) years.  In this context, the easement holder essentially uses the property of another without permission for an extended period of time and eventually gains rights and privileges associated with that land.  

Perhaps unsurprisingly, the rights, privileges, and issues related to prescriptive easements are generally resolved by a court rather than the parties themselves.  As is fairly obvious, the existence and nature of a prescriptive easement is inherently contentious.  While I wouldn’t encourage individuals to access and use the land of others in the hopes of garnering a prescriptive easement, I would recommend that property owners keep a diligent eye out for squatters and trespassers, especially with respect to larger rural properties that are harder to monitor.  The last thing any property owner wants is to lose rights over a portion of his or her land to an unwelcome, long-term guest.  

Returning now to Bernard’s situation, let’s think about how these principles may apply.  In terms of the legal consideration, the best option for definitively handling that unaccounted for area between he and his neighbors’ property lines would be to seek an express easement from his neighbors.  Having an express easement would not only eliminate that no-man’s land by allowing him to connect his fence to the neighbors’ fence, but it would also preserve the neighbors’ property rights with respect to that area.  Moreover, as long as the easement was limited in duration to their respective periods of ownership, any potential for a cloud on the title of either property could be avoided.  This last point highlights the fact that an easement can save a lot of money and headache in the long term.  

That’s the legal consideration, however.  There’s also the practical consideration—cost.  When it’s all said and done, establishing an easement can really rack up a bill for the dominant tenement (remember, that’s the party being granted the rights and privileges).  Expenses can include payment to the servient tenement, surveyors, attorneys, and recording fees.  Consequently, a party seeking access and use should really conduct a cost-benefit analysis of getting an easement before diving in head first.  

When it comes to owners of large plots of land and acreage, the cost of an easement is minor in the grand scheme of things.  It’s much more important in those situations to have the legal rights of adjacent landowners clearly defined and understood, as the alternative can end up costing both parties a lot more.  

For Bernard—the new owner of nice suburban home—the aesthetic blemish of a four foot gap of unfenced no-man’s land wasn’t worth the overall cost of the easement.  I was relieved to hear he decided to stick to his property line, as the potential problems and issues associated with attaching the fences were too great.

Bottom line, it’s crucial that property owners don’t deal with their property lines casually.  Whether it’s building a fence, planting a row of hedges, or installing an irrigation line, property owners should proceed carefully.  When property owners make these types of decisions without the proper legal understanding and organization, they can end up inadvertently decreasing property values as well as potentially leaving themselves susceptible to liability.  

Property lines are finicky creatures.  Don’t get tangled in the hedge rows.  Let a qualified attorney help you navigate your property issues with precision and care.    Our highly trained and experienced real estate attorneys at Hopkins & Huebner, P.C. are here to guide you through any real estate issues you may experience.