Gaining an easement from hostile neighbor

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Dear Real Estate Adviser,
We’re trying to paint our two-story house, but my neighbor has completely fenced in her property. Nearly all of one side of my house isn’t accessible without her permission, and there is less than two feet of clearance between our lots. She also has situated numerous plants and shrubs less than two feet from the side of my house and apparently doesn’t want us disrupting them. Can we get an easement by necessity?
— Rolanda

Dear Rolanda,
You are in a bit of a spot here unless you can find a team of very thin and very flexible painting contractors willing to work on less than two feet of scaffolding.

First off, an easement by necessity, also called an “easement appurtenant,” is not the relief you seek. Typically, such easements only address one neighbor’s need for access to his “landlocked” properties through another neighbor’s property from public roads.

Due to trespassing laws, you technically can’t amble onto your neighbor’s property without her permission. However, most communities have laws that allow you or your contractors safe and reasonable access to your property for repair or painting work. After all, most scaffolding is at least 4 feet wide.

Moreover, cable TV installers, utility workers and others are routinely granted temporary access to neighboring properties to perform their duties. Call City Hall and ask to speak to the building department, which can refer you to the most knowledgeable person on these matters. Find out what’s allowable, get a copy of the ordinance and send it registered mail to her, assuming you are not communicating directly.

It’s too bad that you’re at odds with your neighbor because you’d think another neighbor’s freshly painted house would reflect well on her property’s value as well. Alas, the world is full of intractable people.

Here’s another thought. Have either of you had a survey done to determine if the original plat of the property is accurate and where the actual lot line lies? If not, that may be a worthwhile endeavor, if you think you can gain a foot or two. There is usually more than two feet between most residential properties.

If it turns out that her fence was erected on your side, it is considered an encroachment. That would give you added leverage in your request to use her yard. A letter from an attorney saying that you now have legal footing to remove the fence, which unlike a house or garage, is considered a “nonpermanent structure,” might warm her to your access request a little more.

You might also consider calling your county’s bar association to see if there are any mediation programs available for such disputes.

Here’s hoping you get things resolved as painlessly as possible. Happy painting!

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