Unmistakable Marks: Neighborly Accommodation … Or Not?
A little-known but significant variant of adverse possession and prescriptive easement law has gained significant attention from the courts in recent years. Under the doctrine of neighborly accommodation, land use that appears to be a possible basis of a prescriptive claim may be considered permissive. The doctrine of neighborly accommodation is described in a New Jersey ruling as early as 18861 but references to this concept remain relatively scarce until circa 1980. Many jurisdictions that had not previously considered this concept have done so only in the last 30 years.
It is a widely recognized principle of prescriptive claims that permissive use may not be the basis of an adverse claim. In an apparent contradiction, it is also well established in many jurisdictions that open and notorious use will be presumed adverse for claims of prescriptive easements. Other states hold the opposing view that presumes any unexplained use is permissive.
Determining precisely what actions will be considered adverse or permissive is a major concern for the courts, particularly in situations where contact between plaintiff and defendant was limited.
Key States to Consider Neighborly Accommodation
Early development of neighborly accommodation (also referred to as neighborly acquiescence) appears to be concentrated in New York, Washington and California.
Considering requirements for adverse use in a prescriptive easement claim, an early New York ruling concludes: “A user, however long continued, such as farmers willingly accord to neighbors as a matter of convenience to cross lots, will not be sufficient to establish a right of way. Such a use granted as a matter of neighborly accommodation will not ripen into a permanent right. The law of prescriptive use does not apply to such cases, but only to those cases where there is a sufficient user which is adverse.” 2 In addition, this opinion emphasizes that desultory use (or any use that utilizes a wandering and varied course) will not be considered adverse within the meaning of prescriptive easement doctrine.
Several rulings from the Washington court illustrate the level of confusion that may arise from application of this concept. In Roediger v. Cullen, several neighbors jointly used a footpath that passed near the porches of their respective beachfront houses. The evidence shows that all neighbors used the trail to access the beach and maintained it jointly. Although the lower court ruled that a public easement by prescription had been created, the state Supreme Court reversed the lower court decision based on neighborly acquiescence. “The respondents’ contention that, since the plaintiffs had no express permission to cross the defendants’ property, it necessarily follows that the user was adverse, completely disregards the well-established rule that permissive use may be implied. This rule, it is true, has been chiefly applied in cases involving uninclosed lands, but it is applicable to any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.” 3
At least two subsequent rulings from the Washington court place limits on the effect of the Roediger decision described above. Cuillier v. Coffin 4 applies the presumption of adverse use where the claimants actually constructed the road in question for their own use. This ruling emphasizes the delicate balancing act that takes place between neighborly accommodation and the presumption of adverse use after the fulfillment of the statutory time period. Lingall v. Bartmess 5 notes that “ill will” is not required to prove adverse use, and that a user who never asks permission is using the land under a claim of right. In addition, this ruling reiterates that exclusive use is not generally required to win a prescriptive easement.
Doctrine Considered in Other Jurisdictions
The District of Columbia affirms the legitimacy of neighborly accommodation as a rebuttal of adverse use for prescriptive easements. The court draws a clear distinction between acquiescence of the record owner and the cooperative atmosphere that may arise between neighbors. This ruling notes the “tacit approval” implied by the Chaconas family of the use of their land by Meyers. This approval may be considered implied permission that was renewed at each encounter between the families: Arising out of friendship and neighborly accommodation, appellees’ use of Lot 869 could not ripen into an easement by prescription.6
Not all jurisdictions recognize neighborly accommodation as a legitimate doctrine. Mavromoustakos v. Padussis 7 is one of the few Maryland rulings to consider the effect of neighborly accommodation on a prescriptive easement claim. While this court was urged to follow the District of Columbia ruling Chaconas v. Meyers, the Maryland court concludes: We decline to adopt this approach for the simple reason that the District of Columbia shifts the burden of persuasion in these cases differently than Maryland. This court rejects the premise that neighborly accommodation rebuts the presumption of adverse use. This stance is later affirmed in Turner v. Bouchard.8
At least one Montana ruling attempts to create a more precise definition by which neighborly accommodation may be recognized: “…one of the key factors in determining neighborly accommodation is whether there was an active attempt to prohibit either the general public or specific users from utilizing the roadway. If such can be shown, then implied permission for a neighbor based on the general attitude of neighborly accommodation would prevent the road from ripening to a prescriptive easement.” 9
Applicable to Easement or to Claims of Fee?
The Delaware court system has identified certain actions that may protect an open space designated by a private owner for limited public use.
One of the identifiers for additional protection from prescriptive claims is an area left accessible by specific design, or to allow potential customers to access a place of business. A similar result may occur where a landowner maintains a road for his own use, but allows a neighbor some form of access via the road. The Delaware court concluded: “The presumption is that the neighbor’s use is not adverse but is permissive, and the result of neighborly accommodation on the part of the landowner… Simply put, taking neighborly acquiescence for the kind of laxity required for the establishment of a prescriptive easement is not a rule in accordance with the law of this state.” 10
A footnote in this ruling notes that open spaces associated with public buildings, meeting houses or schools are utilized by permission of the agencies operating the facilities in question; these uses are presumed permissive.
Dobbs v. Knoll 11 is a recent Missouri ruling that considers neighborly accommodation in a claim of fee simple title. The plaintiffs purchased a parcel in a subdivision previously enclosed by a fence. The plaintiffs were not aware that the fence also enclosed a portion of a common area as shown on the original subdivision plat. The defense argued that the common area easement indicated on the subdivision plat defeated a claim that use was adverse. However, the court noted that use by the plaintiffs excluded all other owners in the subdivision from the disputed tract. The court acknowledged that the inference of permissive use was applicable to a situation in which it was reasonable to infer that the use was permitted by neighborly acquiescence. … The court pointed out that the lot owners’ use was originally permissive, in that as members of the homeowners’ association, they had a nonexclusive easement right to the common area. Yet, the court concluded that the construction of a fence and a concrete patio on the common ground “far exceeded a reasonable exercise of that easement right.” [Emphasis added] 12
An adverse claim was defeated in part by the introduction of neighborly accommodation in one Pennsylvania ruling.13 In this instance, the claimant attempted to win title to 18 acres of farm land enclosed by the previous owner, who was a good friend of the record property owner. In an unusual twist, discussion of neighborly accommodation appears predominantly in the dissenting opinion. This court ultimately ruled against the claimants even though their predecessors in title had built a cattle fence around the subject parcel and kept a herd of cattle on the disputed strip for almost 40 years. This ruling equates the principle of neighborly accommodation with the heightened evidentiary requirements applied in situations where a prior financial or familial relationship exists. Other courts have considered it a refinement of the concept of implied permission.
One recent Ohio ruling exemplifies the tightrope the courts must walk in decisions of this type: …a use is not adverse if the landowner gave permission as a neighborly accommodation. …On the other hand, “a use does not necessarily become permissive simply because the property owner does nothing to prevent it out of indifference, laziness, acquiescence, or ‘neighborly accommodation.’” … It is proof that actual permission was granted that is determinative, and not the descriptive label of “neighborly accommodation.” We have held: “‘acquiescence by the property owner with knowledge of the use does not negate a claim for prescriptive easement.’” 14 This judge seems quite aware of the value of following legitimate precedent established by previous local rulings. He also realizes that the creation of new labels for old concepts does not necessitate a change in established doctrine.
Several legal scholars have criticized adverse possession and prescriptive easement law as an unreasonable burden to landowners that discourages cooperation between otherwise friendly neighbors.
This doctrine represents one method by which the courts may address this critique. It also serves to underline the care with which landowners must guard their property rights and the inherent difficulties in determining if adverse use has occurred.
- Hart v. Leonard: 42 N.J. Eq. 416; 7A. 865; 1886
- Van Overbeek v. Batsleer: 191 N.Y.S. 49 (1921)
- Roediger v. Cullen: 26 Wn.2d 690; 175 P.2d 669 (1946)
- Cuillier v. Coffin: 57 Wn.2d 624; 358 P.2d 958 (1961)
- Lingall v. Bartmess: 97 Wn. App. 245; 982 P.2d 690 (1999)
- Chaconas v. Meyers: 465 A.2d 379 (1983)
- Mavromoustakos v. Padussis: 112 Md. App. 59; 684 A.2d 51 (1996)
- Turner v. Bouchard: 202 Md. App. 428 32 A.3d 527; 2011
- Knerr v. Shipman: Cause No. DV 03-9; 2004 ML 260 (Montana)
- Dewey Beach Lions Club v. Longanecker; 905 A.2d 128 (2006)
- Dobbs v. Knoll: 92 S.W.3d 176 (2002)
- Dobbs v. Knoll: 92 S.W.3d 176 (2002)
- Pennsylvania Bank & Trust v. Erich: No. 00855 Pittsburgh: 1987 Pa. Super.
- Gulas v. Tirone: 184 Ohio App. 3d 143; 2009
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.