Our land and neighbor's land used to be owned by one person. Neighbor bought his land 9 years ago. We bought ours 2 yrs. ago. Last year's survey showed neighbor's paved driveway is half on our land. Surveyors put an iron pin in the middle of his driveway, much to his disliking. We don't want a Court battle. Our neighbor refuses to talk, is a nasty fellow who loves to fight and cause trouble. We don't mind his driveway use, for now, but If we don't do anything we could lose our land. Would the best way to fix this, without Court battle or bad neighbor fight, be to send him some sort of notice and give him permission to use our part of driveway? Should we file something with register of deeds? Our goal is to keep peace, not lose our land, stop neighbor from re-paving or selling our land.
First questions are how long have the two lots been subdivided and how long has driveway been there? Yes, if 20 years has passed, he can make a claim of adverse possession (which he'd have to assert in court). If 20 years has yet to pass, yes if you do nothing adverse possession can ultimately happen. What you have suggested is the way to go - giving him permission, a license, breaks the 20 year chain. Have a lawyer draft this for you so it is done right.
To questioners from West Virginia & New York: Although I am licensed to practice in your state (in WV, on inactive status as of 9/13), I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
IF the driveway has not been in place for 20 years or more, you need to break the chain of permissive use. That is done by sending notice of the encroachment and a denial of permissive use by Certified Mail, Return Receipt. You may want to have an attorney draft and send this letter.
That may also get him to be more cooperative, leading to a discussion of an easement.
Note that removal of a surveyor's boundary mark is prohibited.
The foregoing is for general information purposes and does not establish an attorney-client relationship.
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