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Legal Matters: All about easements — when does cutting across a neighbor’s property become legal?

You and your neighbors habitually cut across another neighbor’s yard as a shortcut between intersecting public streets. The yard owner, angered, erects a barrier to stop you.

Do you have any legal right to continue using your shortcut? Generally, no, because you are crossing private property. But possibly yes, depending on the circumstances.

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You could argue that you are merely crossing a county government right-of-way, if the county has a provision in a subdivision plat or recorded deed that grants it access to the property.

Such rights of way are usually for public purposes, such as to dig up a sewer line or widen a road. The right-of-way is granted to the county government, not to individuals who want to cut across the yard. That argument won’t work for you.

You could look for an easement that would allow you to cross. A variety of easements exist in law.

Apparent easements, such as sidewalks, allow passersby to use the walks without asking the owner, “Do you mind if I walk on your sidewalk?”

Light-and-air easements prohibit an adjoining property owner from constructing a building or structure that would cut off his neighbor’s access to light or breezes. Flowage easements allow owners of dams to flood adjoining property to maintain a dam or control water levels in a reservoir.

In the shortcut example, the neighbors may have to stop trying to cut across the yard unless they can show grounds for an easement by necessity. An easement by necessity is created when it is essential for reasonable use of nearby property or properties. If neighbors have no way to access or use their properties except by crossing the unhappy neighbor’s yard, you are considered to have an easement by necessity and will be legally allowed to cut across.

Similarly, if your lot is landlocked, you have the right to an access easement to get to a nearby road, a common type of easement by necessity. Exact details of what the easement would permit, such as whether you would be allowed to drive across the neighbor’s yard to park your car on your landlocked lot, are questions that might require negotiations, or if no agreement can be reached, perhaps a court determination.

The answer to an easement that would allow you to drive across the neighboring property may depend on the judge’s consideration of other practical available options, such as parking on the street and walking across the neighbor’s lawn to your lot.

The shortcut users have another possible option, easement by prescription.

If you and-or other neighbors have been cutting across the neighbor’s yard for more than 20 years, without permission and without claiming ownership of the shortcut, you can prove that you have an easement by prescription, basically an easement established by long use. The number of years varies by state, but in Maryland, it is for more than 20 years.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.

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