Legal Question in Real Estate Law in Georgia

I share a dirt driveway with my neighbors in Georgia. The driveway is partly on their property, mostly on mine. It is literally a dirt trail, and they have road frontage. I want to fence my side in (they have plenty of room on their side to access their property), but they say that they have an "easement by prescription" because the previous owner let them use both sides. I have owned the property since 2006 and ran fence posts along the property perimeter when I had it surveyed in July 2009. There were no recorded easements when I bought it. Oct 2010 was the first objection to the fence posts, via FB. Is this an easement by prescription? They have access from the road, they'll just have to drive on their grass, not in the dirt ruts (seriously...not a road). Also, they have not maintained any of my side OR theirs. My husband does the maintenance with his tractor. Thank you!

Asked on 10/03/10, 12:28 pm

2 Answers from Attorneys

Phillip M. Cook Cook Legal Services, LLC

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This is probably not an easement by prescription, but I can't be sure without reviewing the title to your property and taking a quick look at your property and the neighbor's (usually via Google Earth). Another way to describe a prescriptive easement is an "easement by necessity." These easements, which arise by operation of law as opposed to arising through a written contract, typically allow property owners access to their land in the instance that the property is INACCESSIBLE. The fact that the prior owner allowed the neighbors to use both sides of the dirt road is irrelevant. You are not the prior owner and have a right to keep your neighbors off your property if you choose. It may not be very neighborly of you, but you may be within your rights. Again, I would need to do a little homework before I could give you a definitive answer.

Please feel free to contact me if you would like assistance with this matter. Best of luck.*******The above is for informational purposes only and does not create an attorney-client privilege.********

Best of luck.******The above is for informational purposes only and does not create an attorney-client privilege.*******

Answered on 10/08/10, 12:47 pm

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