Legal Question in Real Estate Law in Oregon

Easement Issue

We have lived in our house for the last 5+ years and have used a piece of land behind our house (which we do not own) for gardening. The house was built in 1992 and the people before us were the original owners & also used the land behind our house for gardening. They put down two rows of railroad boards & filled it in with dirt so that it was level with our property. It's raised off the ground about a foot above the neighbors� property. The owner of the property rents the house the property in question sits on. Today (3/16/2007) I was dumping my yard debris in the back garden area like I have since I�ve lived here when the renter asked why I was dumping my debris back there. I told the renter that the owner had always allowed me to and if there were problems to have the owner call me. My question is this do I have an easement on this land since I & the owner before me used this patch of land exclusively for gardening for well over 10 years and extra steps have been taken to incorporate this piece of land into ours (i.e. the railroad boards)? I built a fence around our property but put a gate in the back to allow access to the garden area. If I do have an easement what do I need to do as I would like the use of this area.


Asked on 3/17/07, 2:38 am

1 Answer from Attorneys

Andrew Svitek Svitek Law Group, LLC

Re: Easement Issue

In general terms, an easement is defined as a "nonpossessory right to the use of another's land." As an interest in land, express easements require a writing to satisfy the Statute of Frauds (most often it is contained in the deed). If the creation of an express easement fails, then it becomes a revocable license unless you have detrimentally relied and have expended resources in reliance on the "easement" in which case it may become irrevocable as long as it takes for you to recoup your investment.

Although your message was not entirely clear, I would assume the land you are using belongs to your neighbor ("another's land") rather than to some unknown third party or to a municipality.

Besides express easements there are other ways that easements can be created -- such as implied easements through necessity, but I don't believe those types would apply in your situation.

There is also a "prescriptive easement" where you have used a neighbor's land for a period of 10 years (not met here) without his permission (also not met here).

So, back to your question. What I think you have is a "license" rather than an easement and the owner could revoke that at any time as long as you are on his land with his permission.

The renter has the right to possession of the land (a leasehold estate), so my guess is he should be able to tell you to stop your activities unless the landlord has contractually limited what rights the renter has in the leasehold by the lease.

Try to negotiate with the tenant or landlord. If you get along with the landlord and there is a month-to-month lease the landlord could alter the lease with his tenant to permit you to continue these activities and the tenant would be subject to it.

If the tenancy is a fixed-term tenancy you're probably stuck dealing with the tenant.

Proceed carefully in this case and contact an attorney if continuing your activities is important to you.

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Answered on 3/23/07, 1:40 am


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