How to lose your property without really trying

Letting neighboring landowners use your vacant lot could come back to haunt you. (iStock photo)

By JAMES MARKELS
Special to the Blade

Imagine you own a piece of undeveloped land in the District.

Your next door neighbor is a car wash business and has its customers drive over your lot to access the entrance. You see it happening, but since you have no plans to use the lot, and the customers aren’t causing any harm, you let it go.

After 15 years of this, however, you finally decide to develop the lot, thereby blocking this avenue of access to the car wash. The owner of the car wash responds by filing a lawsuit asking the court to stop you from doing this, claiming that she has earned the right to use your land for her customers’ convenience. Can she do that?

This was the situation in a recent case decided by the D.C. Court of Appeals, Han v. Southeast Academy of Scholastic Excellence Public Charter School, and the answer is yes, under certain circumstances. The car wash claimed to have what is called a “prescriptive easement” over the vacant lot — essentially, the right to use a portion of the lot in a given way. It’s the limited version of “adverse possession,” in which a person can claim to own land free and clear as though he or she had bought it.

The principle behind these claims is simply that the law abhors an absentee landowner, much as nature abhors a vacuum. Society is better off with landowners who seek to use and develop their land, rather than letting property go to seed unkempt. Therefore, if someone comes along and occupies or uses your land for long enough — 15 years in the District — and you don’t do anything about it, you face the prospect of essentially surrendering your rights to the occupier, who doesn’t have to pay you a thing.

In legal parlance, the occupier has to prove that their use was hostile, meaning in active opposition to your ownership interest, open, as in obvious to anyone who observes the property, exclusive to the occupier and not to the public, and continuous, without a break, for the full 15 years. So if the car wash could show that its customers used your vacant lot for 15 years, continuously (at least during business hours), to the exclusion of other traffic, and you did nothing about it, you may have lost the right to stop them from using your lot for that purpose. Any plans you had to build on your lot would now have to be altered to make sure the car wash’s traffic was not hindered, or else it could sue you for infringing on its property rights.

Classic examples of prescriptive easements include an alley or driveway used by one homeowner that actually belongs to the neighbor, or a shortcut. In these situations, inattentive landowners often lose track over where their property boundary lines are and turn a misunderstanding into legal rights.

So what can a landowner do to short-circuit these kinds of claims? One obvious choice is simply to stop the offending use by erecting a barrier on your land before the 15-year period has elapsed. But what if you want to be a good neighbor? It may be surprising, but giving the car wash express permission to use your lot is just as much of an indication of your ownership over that lot as putting up a fence. Remember, the car wash’s use has to be hostile. If you make it clear that you approve of the use, it’s no longer hostile, and the car wash cannot claim any rights.

In the end, the car wash owner in Han didn’t get her easement because of another glitch — the lot owner proved that the lot was dedicated to public use for a portion of the 15-year period the car wash claimed was exclusive, and no one can claim exclusive rights over land dedicated to a public use. But it still took a lot of litigation and cost to get that result. Being an attentive and vigilant landowner is always the best defense.

The contents of this article are intended for general informational purposes only and should not be considered legal advice. This is part of a series of monthly articles by Jackson & Campbell on legal issues of interest to the LGBT community. Jackson & Campbell is a full service law firm based in Washington with offices in Maryland and Virginia. If you have any questions regarding this article, contact James N. Markels at 202-457-1610 or jmarkels@jackscamp.com. If you have any questions regarding the firm, contact Don Uttrich, who chairs its Diversity Committee, at 202-457-4266 or duttrich@jackscamp.com.