Share the Road, Share the Cost
If you allow a neighboring property owner to cross your land, can you bill them for upkeep and
maintenance of the roadway? We have a large hill, and it takes a lot of effort to keep the roadway
maintained. We've also put in all new culverts to keep the road from flooding. It would sure be nice
if everyone using the roadway helped foot the bill.
First, I'll assume you have already asked your neighbor to contribute to the maintenance of the
roadway, and he refused. That is step one.
Next, you have to consider whether your neighbor has other reasonable means of access. If your
roadway is the only access, the neighbor could obtain a court order granting him a prescriptive
easement. The court would need to find the neighbor had no other reasonable access, and would likely
require the neighbor to contribute to maintenance of the roadway.
If this roadway is not the only access but the neighbor prefers to use it, you can deny access
unless they agree to contribute to the road's maintenance.
Once you reach an agreement, be sure to get it written down, signed and dated. The agreement
will constitute permission for the neighbor to use the road; this will prevent him from ever
acquiring title or permanent easement over the roadway. A consultation with your attorney and
insurance agent will help you determine what to put in the agreement.
—Robert P. Achenbach/Agricultural Law Digest
I just bought 30 acres of land in Tennessee. The old property owners had a bad relationship with
all the neighbors. I've made friends and would like to keep them as friends. But one neighbor tells
me a fence is on his property; another tells me the land was surveyed recently and the fence is
fine. Who would be responsible for having another survey done if that becomes necessary—the neighbor
who believes the line is wrong, or me?
Generally, responsibility for proving the improper placement of a fence falls upon the party
challenging its location. Depending on the jurisdiction, however, costs of the survey may be
recoverable as part of the attorney's fees and costs that can be awarded to the prevailing party of
a lawsuit. So while your neighbor may initially bear the cost of the survey, that expense may be
shifted to you if the neighbor prevails in a lawsuit.
Be aware, though, that even if the fence is not along the property line matching your deed, you
may not have to move it. Many states rely upon "boundary by agreement" and "boundary by
acquiescence" to resolve boundary disputes.
If neighbors agree that a fence serves as a boundary line, or a neighbor does not object to its
placement in a timely fashion when the fence is installed, the fence becomes the boundary,
regardless of the legal descriptions in the deeds.
Before spending money on surveys to refute your neighbor's claims or moving fences, consult an
attorney licensed in your state to determine if the principles of boundary by agreement or boundary
by acquiescence apply.
—Eric L. Pendergrass/
Smith, Maurras, Cohen, Redd & Horan
I am a Texas farmer. My parents owned land that my brother and I inherited. They had no will,
but we had an affidavit of heirship done. Now that my brother is deceased, what legal document is
necessary to get the property into my name?
In the affidavit of heirship proceeding, the property should have passed from your
parents—assuming they were both included in the proceeding—to you and your brother. I'm assuming the
two of you were the only heirs.
If all of this is correct, you and your brother would have taken ownership in that proceeding.
If the proceeding was completed before your brother's death, then you and your brother would have
become the owners. Your brother's share would have passed to his heirs according to his will.
An affidavit of heirship proceeding is an excellent way to handle an estate where there is no
will, and there are basically no final debts on the estate.
You can check with the clerk in the county where the heirship proceeding was done, and also with
the clerk in the county where the property is located, to ascertain the status of the title to the
property.
—Scott Tidwell/Tidwell & Tidwell LLP