- This seemingly simple question is not as simple as it seems.
Let us assume that you are an absentee owner of an unimproved, (vacant), parcel of waterfront property.
Let us further assume that the owner of the property who resides in a house behind yours would like to get to the beach in front of your property.
What is the most obvious thing for your neighbor to do? Wouldn't it be to walk across your property?
Consider granting written permission. (unisa.edu.au/crma/research)
Let's take the next step, perhaps both figuratively and literally speaking.
You arrive on the scene one summer's day, and you observe someone who turns out to be your neighbor, making his way across your property to the beach. What recourse might you have?
Would you draw your pistol and threaten to shoot him? That, among other things, would be very unneighborly and might even depress property values in the community.
There are several other possibilities that you might wish to consider.
You could identify yourself as the owner of the property and inform the gentleman that you no longer want him to walk across your property.
If friendly persuasion doesn't seem to work, this is still not the time to resort to the pistol.
You could advise your recalcitrant neighbor, that if he refuses to cease and desist, (it sounds very legal), you will turn the matter over to your attorney who may petition the court to issue an injunction ordering your neighbor to stop using your property or answer to the court.
You might also interrupt your neighbor's continuous use, by prohibiting him from using your property for a specified period of time, even 24 hours, or by closing off access for a period of time.
You could prohibit your neighbor from using your property for a specified period of time. (heritage.anu.edu.au)
Another possibility is that you may choose to grant written permission, (a license), to your neighbor to walk across your property under prescribed conditions in return for remuneration. Depending on the sobriety of your neighbor, the importance of the use of your property to him, and his willingness or ability to pay the price, this could turn out to be a very profitable endeavor.
Should you choose to follow any of these scenarios, what you have done is prevented your neighbor from having acquired a "prescriptive right" to use your property. Wait 10 years, and your neighbor may have acquired the right to use your property as he had been for the previous 10 years. He need not have been the sole owner for the entire 10-year period. This often-times-surprising and hard-to-swallow pill is known as "tacking." It also applies to anyone who owns the property after the statutory period of 10 years has been satisfied.
In other words, contrary to what you might believe, "permission" prevents the acquisition of a "prescriptive right" before the required 10-year statutory period.
The hypothetical situation described above should not be confused with the subject of "adverse possession." While they bear many similarities, they are not the same.
"Prescriptive right" means continue to use.
"Adverse possession" connotes ownership.
What should be apparent, and if not I will state it categorically: if confronted with these circumstances, consult an attorney right away! Do not try to deal with it yourself!
John is a St. John's University graduate, licensed Real Estate Broker, DOS Certified Instructor, and real estate consultant. He previously taught at NYU, LIU, and The Cook Maran Real Estate School, which he helped found.