Q: I live in South Carolina and share a private road with my neighbor. The neighbor owns the first several hundred feet, and then I own a bit more, and then he owns a tad more on the tail end. My neighbor just informed me that they plan on putting a fence up. That fence would block my entry to my property. Can I legally block them from putting up a fence? Can I put up a fence on my portion of the road to keep them from using my section and getting to the rear portion of their land?
A: Neighbor disputes. We get a lot of those, especially with so many people now working from home. Things that never bothered you before, suddenly might when you’re at home during working hours.
The first question we have for you is, how do you generally get along with this neighbor? Sometimes neighbors do things without thinking through whether those actions will cause harm to their neighbor. On the other hand, it could be a case study on a bad neighbor making a move simply out of spite.
To find out (unless you already know the answer from past interactions), you should ask your neighbor why he has decided to put up the fence. Is this a simple misunderstanding that got out of hand? Or is this the solution the neighbor has chosen to solve a different problem entirely, such as deer eating all of the neighbor’s vegetable garden?
There are times that neighbors have misunderstandings that can get out of hand. So, knock on the door, and ask what they plan to do and how they plan to accommodate the continued access you need to your property.
There are practical issues in question, and then there are the legal questions. On the practical side, your neighbor let you know that he was putting up a fence. Is he really putting up a fence that would restrict access, or is it a gate that you’d be able to open at will, allowing you to continue to use the road?
Once you’ve tried to talk to your neighbor, understood the reasons he is installing the fence, and failed to convince the neighbor to accommodate your right of access to your property, you’ll likely need legal help.
Usually, private roads are governed by easement agreements. An easement gives someone or a company the right to cross or use another’s property. A common example: The local power company may have an easement allowing them to access their utility pole on someone’s private land.
In your case, we suspect there’s an easement giving you the right to the continued use of the road. The easement likely gives your neighbor the use of the road as well. Sometimes private road agreements show up on plats of subdivision. Or private road agreements show up on deeds of conveyance — when a property owner sells the land and also creates the agreement on who might use the road.
While an easement agreement may contain a lengthy description of the rights everybody has to use the road, it may also state who has the obligation to maintain it or to pay for the maintenance of the road. But Sam has seen some road agreements in deeds of conveyance that are quite short and simple.
In any case, look for the document that created the road agreement or described the easement. Review it to see if your neighbor has the right to fence any part of the road or do anything that impairs your ability to use the road. If your neighbor insists on depriving you of the use of the road but doesn’t have the legal right to do that, your attorney might have to remind him of his obligation to keep the road open for your use.
Don’t worry if you can’t find an easement agreement between you and your neighbor for the use of the roadway. You might still have the continued right to use the road. Sometimes roadways exist and have been in continuous use for many years. In these cases, the law may imply the continued use of the roadway by its existing users. In other circumstances, the way a roadway started and the way the different properties existed may have created an easement right for the continued use of the roadway.
It can get complicated and confusing to figure out easements and rights of use under the law, which is why you’ll want to consult with an attorney who not only specializes in real estate but has experience in this specific area.
(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through their website, bestmoneymoves.com.)
©2021 Ilyce R. Glink and Samuel J. Tamkin. Distributed by Tribune Content Agency, LLC.