by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.

Question: Several years ago my mother bought a home in the Heber-Overgaard area in the White Mountains. My mother owned this home as Joint Tenants with Right of Survivorship (” JTWROS”) with me. My mother has passed away, and I am now the sole owner of the home. On my last visit to the home a neighboring property owner told me that he had the right to drive over a dirt road in the backyard of my mother’s property. I have searched the County Recorder’s records, and there is no recorded easement to this neighboring property owner. I want to fence off the backyard. The neighboring property owner says that, if I attempt to prevent his use of this dirt road, he will take me to court because he has used this dirt road for many years. Do I have any right to keep this neighboring property owner from using this dirt road?

Answer: In general, if the neighboring property owner has been continually using this dirt road for more than ten years without your mother’s permission, this neighboring property owner may have a prescriptive easement to use this dirt road. You should check your mother’s title insurance policy issued when she bought the home. Although this title insurance policy probably does not cover this non-recorded prescriptive easement, if it did furnish coverage, you as the surviving joint tenant should have a claim under this title insurance policy. Otherwise, you should contact a real estate attorney to see if there is any basis to oppose your neighboring property owner’s claim for a prescriptive easement.