Sep 20, 2020 @ 21:56
Consult Atty Claire: Whose right will prevail? Land owner finds out neighbors own their property for real
Dear Atty. Claire,
I want to ask if there is the possibility to recover my land which is not being occupied by our neighbors. They are claiming it but we have our title and real property tax to prove of our ownership.
However, when we had the property re-surveyed, we found out we are ones encroaching on a part of their land for 33 years. They want that portion back but we are already using that portion as right of way.
Do we have a right over this portion if ever they proceed in filing a case against us?
Ms. Mara Jane,
If that said portion is still registered in the name of your neighbors, it belongs to them. They have all the rights to possess and enjoy it.
You better check the land title. If it says that such portion has been devoted as right of way, they cannot just take it because it will violate the easement of right of way. If it is not really intended as right of way, they can recover it and have you ejected from that premises.
Assuming that there is no easement of right of way in the technical description and you have no other right of way because your property is located at the inner portion, you can request that it remains as the right of way but for a fee. You will be required to pay for that to make it as your permanent right of way.
However, if you have another right of way aside from this area, you can not force your neighbors to give it to you for your convenience. For example, you can have the ingress and egress using the back portion of your land, however, you want to pass thru the way you are using now since it is the shortest route, you can not force its owner to give as the right of way because it will be convenient to you. The easement of right of way shall be that one which is least prejudicial or burdensome to the servient estate (owner of the land).
If ever the land owner agrees to give that portion for your right of way, you will be required to compensate for that use.
Here are the requirements in establishing a right of way:
1. The easement must be established at the point least prejudicial to the servient estate
2.The one who requests for the right of way must be an Owner of enclosed immovable or with real right
3. There must be no adequate ingress and egress to a public highway
4. The right of way if of a necessity and not for one’s own convenience
5. The isolation must not be due to the fault of the claimant
6. There must be payment of proper Indemnity for that portion to be used as right of way.
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