Can neighbor make me dig up path?

Q: I live in a gated community with zero lot lines between houses. About 12 years ago, I asked my neighbor if he would be interested in putting a gravel path from the front to the back between our properties, as it is impossible to grow grass in this shaded area and it got muddy. His response was, “Do whatever you want. I never go on that side of the house.” Now he decided to send a certified letter telling me that part of the path is on his property, and he wants it removed, or he will consult an attorney. Do I have to remove it? — Barry

A: You have two issues at play here. The first is whether you need to remove the path from his property, and the second is where his property line is. We will address the second issue first.

The legal concept of “adverse possession” states that if someone uses someone else’s property under certain conditions, he or she becomes owner of the property. The reasoning behind this is that all property is supposed to be productive, and if someone takes over and works abandoned property he or she will eventually own it. To become owner of the path, your use of it would need to fulfill five conditions. Possession must be hostile, actual, exclusive, open/notorious, and continuous.

In non-lawyer talk, this means use of the property would need to be without his permission, actually used only by you and in no way hidden for a specific period, usually between seven and 10 years. It is important to note that you can only become owner of someone else’s property if all of the conditions are met. In your case, since he permitted you to put in the path, your neighbor will not lose his ownership of his part to you, even though you met the other conditions.

Now, we will have to determine whether you need to remove the path. The short answer is no, you do not need to, but he can if he wants to. In a nutshell, your neighbor gave you a “license” or permission to put the path over a portion of his property and made no requirement that you remove the gravel if he changed his mind. Since it appears he has now changed his mind, something he has the right to do, he can remove the path to his property line, plant a tree over it, or do whatever he wants with it, as long as it is within community rules. This issue is not that much different than your right to carefully prune back your neighbor's tree limbs if they cross onto your property.

Gary Singer