It is *so true* that the ultimate responsibility lies with each new possessor of a piece of property–even if it has been understood by a family to be in the family for over a century. We were wrongly advised by our realtors about surveys; they said it wasn’t necessary, but after we purchased, we discovered some covenents that we were unaware of, that were not disclosed at the point of sale. This occured in 1992. As a result, the living room of the house was technically too close to the property lines, and we built a shop that was in violation of the covenent–that’s how we found out about it. After watching us build the shop, our neighbors who were aware of the covenant said *nothing* until we’d completed the building! I asked them, “Why are you just now bringing this up if you have a concern about it?” We sought legal advice. We were concerned about the future re-sale of the property and if this situation would cause any problems in selling. The attorne was pushing us toward suing the real estate agent for telling us that a survey wasn’t necessary (we were first time buyers and very naive.) But we decided to drop that when the attorney pointed out that this was not a maintained sub-division, there was no neighbor complaning OR damaged, and no property rights association to enforce the covenent, so it was basically unenforcable. Our attorney said “there probably isn’t a judge in Arkansas” who would make us remove our living room or shop to be in compliance with the covenant. So with no one damaged, we let it drop.

We should have gotten a survey. If I buy property in the future, I will do that! But in getting a survey, that knowledge and clarity may come with a price; just look at Neil McGuire’s case. Might be better to let his neighbor just use the lane in exchange for him keeping his building where it is. That would be a win-win in a bad situation.

In my situation, in NW Arkansas, we have another issue with a neighbor using a private road that borders their 3 acre lot, a road to which they have no legal deeded access. That lot was sub-divided off from a 7 acre parcel adjacent to ours about 6 months after we bought our place, and that 7 acres did not have deeded access to the private road that we and others use to access our parcels. These new neighbors started using the private road almost immediately for their own convenience, though they have deeded access to the main road and they have no real need for the use of the private road. I told them they did not have access, and that we wanted them to stop using it because the way they were using it would erode the private road, but they continued to use it. My husband at the time and the other neighbors with deeded access to the private road were too wimpy to stand up against this thieving use and so, the situation has gone on for about 18 years. I was right: their use of the road has eroded it starting at the point of their access on it, and there are now ruts in what was formerly a fine access road. Yet…they will do nothing to maintain it. If we want this fixed, we’re faced with the full cost of repair.

These people have reportedly said that they have adverse possession, but they have not gone to court to claim such, so it’s my understanding that they technically do NOT have adverse possession; they just think they have a good case. But according to legal advice I sought a few months ago, in a court, it could go either way, because they abandoned their property and use of the road for over 6 months at one point about 7 years ago. Also, it’s my understanding that whether or not they attain adverse possession, any of us who have deeded access to the road can sue them under tort law for damaging the road and require them to repair and/or pay damages.

But, what a mess! Expensive legal fees, harder feelings than we already have, with *neighbors.* I think these people are selfish, self-centered, and very very poor neighbors. It will cost us much less money to simply suck it up and repair the road on our own and we might get a better outcome, in terms of the condition of the road. But for us to be put into this position due to the greediness and selfishness of “neighbors” is absolutely wrong, in my opinion. I wish there were a better way to resolve this, because any way we look at it, we’re going to lose money and time and yes, even pride, by letting these people continue to use a road that only *we* keep up. I wonder if any of the defenders of adverse possession who have already posted here would think that this was right if it were to happen to them?

The situation that you describe is one of the few that I’m aware of where the doctrine of adverse possession can work toward a just result.

When I’ve been asked to protect the scenic view of one of my clients, I prepare a document (called a scenic easement or view easement). If the parties reach agreement, the document is recorded and prevents construction that would block the view.

Another rule of law is the “parol evidence rule,” which prevents a court from looking for a document’s meaning outside of the text of the document, unless the document is ambiguous or was obtained by fraud or forgery.

The statute of frauds and the parol evidence rule prevent courts from having to decide cases concerning real estate on the basis of allegations (always contradictory and mostly self-serving) about intent. The best evidence of intent is what was written and signed.

There are narrow exceptions to the statute of frauds and the parol evidence rule, but the existence of these rules and the public land survey and recording systems provide a great deal of certainty with respect to real estate.

Each state has a system of surveys and provides places for recording real estate documents, so buyers and sellers of real estate can determine with considerable certainty who owns what. When buying property, it’s a good idea to look at the public records of ownership of adjacent land to avoid surprises later.