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marvG · Nov 15, 2012, 11:15 AM

Two adjoining properties @ the Jersey shore. Have been owned by my family since 1940's. Property line on "right hand" property is approximately 1 foot from building (built in 1920, pre-code). Access and parking ( driveway) has always been from property on "left hand side". Last Dec. Deeds were transferred. I got "right hand", my brother got "left hand". He now informs me that I will no longer have access to park in my yard. What are my chances for an easement by adverse possession,(or any other means) to get to my back yard? Note- there is no room on the other side of my property to get in back. There is a cement wall with roughly 3 feet between the home and property line on that side.

joypulv · Nov 15, 2012, 11:35 AM

Whoever gave or left it to you could have written an easement into your deed. But now you don't have a claim to an easement, because it hasn't been adverse (open and hostile, without permission), and it hasn't been the minimum number of years for NJ, which I won't look up because it's going to be at least 10. You are going to have to negotiate with your dear brother.

LisaB4657 · Nov 15, 2012, 06:55 PM

There may be at least two ways, if not more, for you to get an easement over your brother's property. The first way is an easement by necessity. The second way is a little more complex and should probably be tried as a backup plan if you can't get the easement by necessity. There is a law that says when two or more neighboring properties are owned by the same person or entity then those properties are merged into one common lot. By separating the property with two deeds the previous owner may have performed an unapproved subdivision which does not conform to code. The creation of an easement would make the property conform to code.

Using either method to get an easement is going to require that you retain a real estate attorney. I suggest that you look for one in your area who will give you a free consultation.

Good luck!

joypulv · Nov 16, 2012, 02:58 AM

LisaB, I hadn't thought of that. I like the approach of unapproved subdivision. House is much too close to lot lines to be on a single deed. But could this open a can of worms?

LisaB4657 · Nov 16, 2012, 05:25 AM

Not if the house was pre-existing the code. Then the town has to approve it. But they can (and will) require an adjustment of the lot lines to permit a driveway or will require a shared drive.

ScottGem · Nov 16, 2012, 05:40 AM

Originally Posted by LisaB4657

There is a law that says when two or more neighboring properties are owned by the same person or entity then those properties are merged into one common lot.

The problem with this, is the OP has indicated these are separate lots. He refers to "adjoining properties" being owned "by the family". So these could be separate lots owned by different family members.

I think easement by necessity is the more likely to work. As far as I'm aware, it is illegal to "landlock" a property. So blocking access wouldn't be allowed.

LisaB4657 · Nov 16, 2012, 05:48 AM

Originally Posted by ScottGem

The problem with this, is the OP has indicated these are separate lots. He refers to "adjoining properties" being owned "by the family". So these could be separate lots owned by different family members.

I think easement by necessity is the more likely to work. As far as I'm aware, it is illegal to "landlock" a property. So blocking access wouldn't be allowed.

The property isn't landlocked if it's on the road. The fact that the location of the house on the lot prevents the owner from driving to the back of the lot doesn't create a landlock situation. A landlock occurs only when the entire property does not have access to a road.

AK lawyer · Nov 16, 2012, 06:57 AM

Originally Posted by ScottGem

The problem with this, is the OP has indicated these are separate lots. He refers to "adjoining properties" being owned "by the family". So these could be separate lots owned by different family members. ...

That's the problem I had with Lisa's merger-illegal subdivision argument. If I own a block of houses does that ipso facto make them one parcel again? But I assume Lisa knows a lot more about N.J. land law than I do.

Perhaps it only applies if the common owner improves the property without first obtaining required building permits.

marvG · Nov 16, 2012, 10:37 AM

Thanks to all for your replies. "My" lot is 25' x100" and the house and setbacks do indeed predate the local codes. The other house sits on a 50'x 100' lot which is the standard for the town. The lots are deeded separately. The family has used the area between the two as the driveway for both since the 1940's. There was never a problem until a disagreement allowed my brother to show me I could no longer park in my yard. Must admit, I did not see this one coming- even a little.

joypulv · Nov 16, 2012, 10:57 AM

A local lawyer versed in your shore town ordinances might possibly be able to get you an easement, as has been suggested.

AK lawyer · Nov 16, 2012, 11:47 AM

Originally Posted by MarvG

... The family has used the area between the two as the driveway for both since the 1940's. ...

The problem with claiming a prescriptive easement is, while you may "tack" the period your predecessor owned your place (from the '40s), so as to accumulate the time provided in the SOL, your predecessor ("the family") cannot adversely possess against himself.