What to do regarding a right of way?
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What to do regarding a right of way?
I have owned my property for 46 years. The end of driveway belongs to my neighbor. He has put across the entry a log. I did find laws regarding right of way but cannot find it again. Could you direct me to locate? I am in the process of selling.
Asked on May 30, 2019 under Real Estate Law, New Hampshire
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
Try looking up. "easement," not "right of way": easement is the technical, legal term.
There are generally three ways to have an easement.
1) It's already on your and/or neighbor's deed (you can see their deed at the county courthouse) and is as much a part of the property as its boundary lines. If there is already an easement, it is legally enforceable: if he won't honor it, you can bring a legal action for an order obligating him to do so. This kind of easement was often created when both properties were split off or created from one larger property: in doing so, the developer granted access rights to make sure that property owners could get to their land.
2) An easement by necessity can be created by the court IF you can show that you must have access across another's land into order to reach a public road from your land. The key is, it msut ber *necessary*--that is, you have no other direct access (without going over another's property) to a public road. If you do have such other access (for example, a public road runs along a different side of your property) you can't get an easement, but would have to spend the money to build or relocate the driveway to the other access. If you feel that yo have grounds for an easement by necessity, file a legal action in county court against your neighbor to have the court create the access. You will probably want to hire lawyer to help you.
3) An easement by prescription is similar to "adverse possession": if you have been using their land in for access in a way that open or obvious, continuous, uninterrupted, and adverse/hostile to the neighbor's use (basically, your use of land is exclusive and precludes or limits the neighbors own use--and a driveway across their land, which limits what they can do with that strip of land, may well qualify) and having doing so for the adverse possesion time period (20 years in your state), you have essentally claimed access rights in legally binding way. You can go to court to have the court validate and make official your easement; you are again advised to retain an attorney.
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