Can an apartment complex fence off a decades long path used by a neighborhood?

I live on a dead end street, one of 3 that dead end at an apartment complex. The complex is fenced on one side, the side facing our streets. The fence has openings for pedestrian traffic at the end of each of our streets. These paths have been used by the neighborhood for decades. Today the complex has sealed the fence forcing residents to make a good half mile detour to local shopping. Can I argue that the long standing paths are an easement under Idaho law and force the complex to reopen the fence? If so, what would the process be for a retiree living on a fixed income?

Asked on May 24, 2012 under Real Estate Law, Idaho


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

There is strength in numnbers .  You would have to bring an action asap against the property owners seeking a type of easement that pertains to the facts of your case: either a "constructive easement" or "implied easement" or "prescriptive eastment" under Idaho law. There are easments that are created or acquired by continued use without permission of the owner for a period provided by state law to establish the easement (constructive or prescriptive). The problems with prescriptive easements are that they are not written down anywhere so they can sometimes be unclear. Laws vary from state to state and it will depend. These are all easements really that do not where nothing exists in writing, but there is reason to believe that an easement exists. An implied easements can be created when it is clear that the landowner intended to give you an interest in the land. That may or may not be here and will need to be researched. Try getting help from legal aid or any legal agency that helps the elderly. Good luck.

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