Question: After we purchased our home in Gilbert last year, we noticed that our neighbors were using a portion of our land for the driveway to their home. We were concerned about adverse possession. Therefore, we contacted the sellers of our home, and they said that our neighbors have been using that driveway for more than ten years. The sellers also said that they never gave our neighbors permission to use the driveway. We then sent our neighbors a certified letter stating that they had permission to use the driveway now, but that at any time we could rescind our permission. Although our neighbors signed a receipt for the certified letter almost a year ago, they have never responded to us. Do our neighbors have any right to use this driveway?
Answer: Probably. Although the law is basically the same, there is a difference between adverse possession, i.e., ownership of the land, and a prescriptive easement, i.e., the right to go over another person’s land for ingress and egress. Unfortunately, if your neighbors have been using the driveway on a regular basis for more than ten years without permission from the sellers of your home, your neighbors probably have acquired a prescriptive easement to use the driveway over your land. A survey of the driveway should be obtained and an easement for the driveway should be recorded by you and your neighbors. Even if you or your neighbors do nothing now, you will have to disclose this prescriptive easement claim to any buyer of your home. Note: Permission generally terminates any potential adverse possession or prescriptive easement claim. After ten years, however, your neighbors acquired a prescriptive easement. Therefore, your certified letter granting permission was a nullity.