The County Abandoned the ally behind my house. They split it down the middle and gave it to the neighboring property owner. My shop has an garage door that was accessed by this ally. Do I have any easement rights?

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The County Abandoned the ally behind my house. They split it down the middle and gave it to the neighboring property owner. My shop has an garage door that was accessed by this ally. Do I have any easement rights?

My shop is very old and has only been accessed by this ally. I have lived here for 4 years and have always accessed the shop and my back property from this ally.

Asked on November 7, 2016 under Real Estate Law, Montana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

IF the *only* way to access your property is by the alley, then you should be entitled to an easement "by presecription"--when the law grants you an easement due to necessity. You may have to go to court (bring a lawsuit vs. the other property owner) to get a court order ("declaratory judgment") granting you the easement, but in the event this is your sole access, you should have a good case for the easement.
But if you can acccess your shop and back property some other way, even if it is not convenient, you are not entitled to an easement: courts will only grant A an easement over B's property if there is no other way for A to get to his/her property. It doesn't matter if in the past you went this way--all that matters is whether you have options to get there or not.
Of course, you can also negotiate with the neighbor to try to get a license to use the alley, such as by paying some modest annual or lump sum fee. If you do this, get the agreement in writing.


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