Seven Steps That Could Help Prevent or Fix an Access, Trespass or Property Ownership Problem

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If you own land in Maine, you may be assuming that you have all the property rights you need to access and develop your land and to protect it from encroachment by others.

It can be an unhappy surprise to find that an abutting landowner is challenging your right to use or develop your land, or is using your land over your objection, or is using his own land in a way that adversely impacts yours. If you and the abutter cannot resolve the land use dispute by agreement, there may be no way to resolve it short of obtaining a court order declaring who has what rights. (NOTE: If the abutter starts the court action, and you are served with a complaint and do not defend against his claim, the court could declare rights in the abutter’s favor simply because you “defaulted”.)

In my 20+ years as a Maine property rights and land use attorney, I have helped address and resolve a wide range of questions about property rights, including such questions as the following:

  • Subdivision rights: Will the lots I plan to subdivide from my original lot have the same right to use the access way across the abutter’s land that my original lot has? Am I required to contribute to the cost to maintain the way?
  • Scope of access right: Can I require the owner of the land over which I have an access easement to maintain the access way? Can I grade, widen or pave the access way myself?
  • Road maintenance agreement: The landowner abutting my property is not complying with the road maintenance agreement that applies to our and others’ properties. What is my remedy? Should I and the other property owners form a road association?
  • Right to restrict access: Can I stop others from increasing their use of their access easement across my property, or gate the access way to regulate the amount of use?
  • Right to buy out a co-owner: The co-owner of my land and I disagree about whether to preserve or develop the lot we jointly own. Can I require her to sell her interest in the land to me, or get a court order to sell or partition the property?
  • Prescriptive Right/Adverse Possession: I and prior owners of my lot have crossed the abutter’s property for years, but the abutter now asserts I have no “right” to cross his land, and has posted a notice and is blocking the road. Do I have the right to remove the obstruction on my own because of my long-term use of the road, even though my deed says nothing about an access easement? Can I file a document in the registry of deeds to establish my right to use the road without having to go to court? If I go to court, will the court rule that I have an access easement because of my long term use, either by “prescription” or “adverse possession”?
  • Trespass: 1) The home that was just built next door is causing my basement to flood and the homeowner refuses to do anything about it. Can I get an immediate order from the court ordering him to correct the drainage problem and to pay for the water damage to my home and personal property? 2) An abutter’s blasting has cracked my foundation. Will the court require him to pay for the repair? 3) An abutter cut some trees on my property. What kind of compensation can I get for this damage, and will the abutter be required to reimburse me for my attorneys’ fees?
  • Claims against my property: The abutting lot owner claims he owns part of my lot. I want to sell my lot and need to clear up this cloud on my title. How do I do this?

To maximize your ability to resolve in your favor, property and land use rights questions like these, there are a number of steps that may be appropriate for you to take, such as the seven steps described below.

Seven steps that could help prevent or fix an access, trespass or property ownership problem:

  1. First, Speak personally with the Abutter to Attempt to Resolve the Dispute by Agreement and without Litigation: The obvious first step to attempt to resolve a property or land use dispute is to present personally your view of the situation to the abutter to try to resolve the dispute by agreement. If you have not approached the abutter to talk things through, it may be worth your while to try this first, to determine if your respective goals can be accommodated. An agreement can avoid the stress, time and expense of litigation, even though it may require compromise. Any agreement reached should be in writing and signed, and should define the scope and limits of your and the abutter’s respective property rights. To bind subsequent owners of your and the abutter’s land, the agreement should be converted into a title document to clarify or modify your and your abutter’s deeds, for filing in the registry of deeds.
  2. Obtain Written and Oral Information About the Historical Use of Your and the Abutter’s Land:If you and the abutter cannot resolve the dispute by agreement, it may help for you to build your “factual” case to support your position. You can do this by gathering information about the written history of your and and the abutter’s land, from deeds, plans and surveys (title history), and from other documents (such as town tax and public works records and photographs) and “oral history” information, such as residents’ personal recollections about the use of the properties. A judge may consider the past use of the land in deciding the existence (or absence) of current asserted land use or ownership rights. It can be particularly helpful to interview residents about their recollections before any lawsuit is filed. Once litigation begins, residents can become reluctant to recall the past use, especially if they have any allegiance to the other party. On the other hand, if their recollections do not favor your position, it is good to know that in advance. If a resident is willing, and his recollection is favorable to your position, it can be very helpful to document his testimony in the form of an affidavit.
  3. Obtain a Survey, or Not:If you do not already have a survey of the disputed area, you may want to obtain one. You, or your attorney, will want to advise the surveyor of your goal, so the surveyor can advise whether his research supports that goal before creating any survey documents.
  4. If You are Trying to Prevent the Abutter (or others) from obtaining a Prescriptive Easement, Post Timely Legal Notices on your Property to Prevent such Rights from Arising, Regardless of the Abutter’s Use:Under Maine statute, you can prevent others from obtaining adverse rights over your property if appropriate notices are timely posted on your property, and filed in the registry of deeds.
  5. Consult Early on with an Attorney on Property Right Legal Standards and on a Game Plan:A land use attorney can advise you on Maine case and statutory law on property and land use rights, on what they are, how to establish them, and how to challenge them. The attorney can advise on such things as the scope and meaning of a deeded easement, adverse possession, prescriptive easement, easement by estoppel, easement of necessity, easement by acquiescence, “reverse” adverse possession, public rights of use, trespass, boundary questions, required sale or partitioning of property, and road maintenance agreements. He or she can also advise you on the specific legal and factual standards that would be applied by the court in your case, in determining who has, or has not, what land use rights. The attorney can also work with you on a plan to gather evidence to build your case, which can help not only in litigation, but also in any pre-litigation negotiation, or settlement effort while litigation is pending.
  6. Have an Attorney Send a Formal “Demand” Letter to the Abutter: Once you have all your facts, documents and legal arguments ready, you may want to make one last effort to resolve the dispute with your abutter before filing a lawsuit. To this end, your attorney can draft a formal “demand” letter to the abutter, laying out in detail the legal and factual bases supporting your position, explaining why your position is likely to prevail in court, and offering a final chance to settle the matter by agreement before commencing an action in court. An abutter who previously was not amenable to agreement may become more receptive once she sees the persuasiveness of your arguments in writing, and that you have retained an attorney who is ready to file suit.
  7. To Save Time, Consider Requesting a Referee to Decide the Court Case:Should the only way to resolve the property or land use dispute be through a court action, then the work you and your attorney will have done in advance of the suit will stand you in good stead in getting ready for a court hearing. However, criminal and family law cases typically take priority in the Maine courts, and property land use claims may not be reached for final hearing for years. If an early resolution is important to you, you may want to consider requesting a referee to decide the matter. A referee’s more flexible schedule will enable the matter to be decided much faster. Assigning the case to a referee is not a decision you can make unilaterally, however. The abutter must also agree to the reference. Without a reference by the court, you can still request an expedited hearing, if you have compelling reasons for the court to grant such a request.

An informed and strategic approach to addressing your land use dispute can not only save you time and money, it can also maximize your chance of a successful result. Consulting with an attorney early on and having the attorney draft any documents involved in the resolution can be a wise investment, and can provide you certainty for the future of your land.