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

UPDATED: May 24, 2012

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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 10 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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