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A legal right to trespass

Ben Kirkby / Staff
Genevieve Mercer must remove this agave and other plants because her neighbors have a legal right to use her property for their access.

Couple discovers obscure law that allows neighbors to use their land By Jennifer Sterba

Genevieve and Robert Mercer said they were under the assumption that you get what you pay for when they purchased a lot to build their retirement home almost 10 years ago. But what they found is that regardless of what their title says, a neighbor can claim the right to use their land.

It's called a prescriptive easement.

Similar to "adverse possession," which allows somebody to claim ownership of a piece of land simply by occupying it for an uninterrupted period of time, prescriptive easement allows individuals to claim the right to use a portion of land if they can prove they have been using that land continuously for a minimum of 10 years, said Lewis Schorr, a real estate attorney with Lewis
and Roca in Tucson.

The Mercers have spent $50,000 fighting in court with neighbors who have exercised that right.

"We feel, my husband and I, that there has been a great wrong," said Genevieve Mercer, a retired resident of the 4900 block of North Calle Bosque in Flecha Caida Estates in the Foothills.

In many affluent neighborhoods such as Flecha Caida Estates, the homeowners association's covenants, codes and restrictions prohibit residents from erecting fences or posting "no trespassing" signs on their property.

"So there's no way you can defend our property," she said. "They can do it (trespass) while you're at the grocery store."

Schorr said that's what makes this case interesting. "The way you typically would stop an adverse possession or prescriptive use (is) you'd interrupt it," he said. "You'd try to stop it."

Lisa Smith is the plaintiff attorney for Joanne Hamilton, who lives directly to the south of the Mercers. She said state law outlines what it takes to gain a prescriptive easement - and the Hamilton family proved those elements in court.

"Over a course of 30 years, the Hamiltons had been using this pathway," Smith said. "It was the only way for them to get from where the driveway ends to the back of their house."

"Anybody who was diligently taking care of their property would have seen it." 
The Mercers said they first noticed the Hamiltons were using a portion of their land when they began building their home in 1991. Genevieve said when she approached Joanne Hamilton about the matter, Hamilton explained her family needed to access the back of their split-level home.

"We allowed her to use our driveway because, despite their living on their property in excess of 30 years, they did not want to extend their driveway to the back of their house," Mercer wrote in a flier about the justice system, highlighting her side of the story.

Pima County Superior Court Judge Kenneth Lee ruled in the fall of 1997 that the Mercers must grant that right of use of their driveway to the Hamiltons.

The Mercers appealed the decision to the Court of Appeals, Division 2, which upheld Lee's decision last summer. The appellate court stated in its decision a prescriptive easement "must show by clear and convincing evidence that his or her use of another's property was actual, visible, open, notorious, hostile, under claim of right, and continuous for the statutory period of 10 years."

While the Mercers have resigned themselves to the fact that there's nothing more they can do in terms of legal action, they are determined to spread the word that this could happen to anyone.

Harry Rohwer, a retired Lutheran pastor who resides on the Mercers' street, said, "As far as I'm concerned, I think this is woefully wrong."

Rohwer has lived in Flecha Caida Estates for nearly 30 years. He said he once gave permission to a neighbor to use part of his property while installing a swimming pool. "I still own it, but I let them use it," he said.

And that's one way to prevent a prescriptive easement from being established, Schorr said.

"In order for a right to be prescriptive in nature, it has to be adverse," he said. That means the use has to be accomplished without the owner's permission. If that neighbor had permission in writing, the property owner could enforce such constraints as type of use, liability of damage, specific times or dates of use, and even a monetary compensation for the use.
* Contact Jennifer Sterba at 573-4129 or at jsterba@azstarnet.com.