Church Property - Part 1

• Key point 7-18. Churches can lose a portion of their property to a neighboring landowner as a result of "adverse possession," if the neighbor openly and adversely occupies church property for the length of time prescribed by state law.

An Arkansas court ruled that a neighboring landowner had a legal right to use a roadway across church property to access a public road because he and his family had used the roadway for a sufficient length of time without objection by the church. In 1984 a family purchased a home on property adjacent to a church. The only access the property had to a road was a gravel driveway across the church's property. In 1996, the family attempted to make some improvements to their property but were unable to acquire financing for the project without receiving a written easement from the church recognizing their right to use the driveway. When the church refused to grant an easement, the neighboring family filed a lawsuit in which it asked a court to recognize that they had a legal right to use the driveway. At trial, the family testified that when they acquired the property they assumed that the gravel driveway came with the land and that they had not asked anyone for permission to use it. The husband testified that the driveway was the only access to the property that he had ever used. He also stated that he had assumed that he had acquired the right to use the driveway along with the property and had not believed that he needed permission to use it. He said that no one from the church had ever indicated that he needed permission to use this driveway nor had anyone from the church given him permission to do so; that visitors and anyone providing services to their house had used this driveway; that he maintained the driveway and kept it clear of debris; that he put gravel on the driveway and a member of the church graded it for him; and that he had continuously used the driveway since 1984 in the presence of church members and that no one from the church had ever mentioned the subject to him.

A church trustee testified that no one from the church had ever informed the family that they needed permission to travel across the church's property for access to the county road. He further testified that although he had observed the family and their guests using the driveway, he had never done anything to prevent such use and had never personally communicated to them that their use was allowed.

A trial court ruled that the neighboring family had a legal right to use the driveway on the basis of an "easement by prescription." Such an easement arises by operation of law after a landowner uses a roadway across another's property for a sufficient length of time. A state appeals court agreed. It conceded that Arkansas does not have a statute specifying the length of time needed to establish an easement by prescription, but it noted that the state supreme court had applied the 7-year period for acquiring title to land by adverse possession. The court noted that

where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.

The court noted that persons claiming a prescriptive easement are not required to "openly communicate their intention to use the road adversely before permissive use can ripen into an adverse right," and that the length of time and the circumstances under which the roadway was opened and used are sufficient to establish an adverse claim, when those circumstances indicate that the true owner knew or should have known that the road was being used adversely. Further, one's use of a roadway "may ripen into an easement by prescription even if the initial usage began permissively, if it is shown that the usage continued openly for the statutory period after the landowner knew that it was being used adversely, or under such circumstances that it would be presumed that the landowner knew it was adverse to his own interest."

The court concluded:

It is clear that the driveway is the only means of access to [the neighbor's] home. [The neighbors] assumed that they had acquired a right to use the driveway along with title to their property. [The church was] aware that [the family] had acquired title to the property in 1984 and that they had consistently used and maintained the driveway since that time. It is clear from the testimony that [the family] had used the driveway under a claim of right for over twelve years and that [the church] had never attempted to limit their access or to inform them that their use was permissive.

Application. It is common for churches to permit neighboring landowners to use a roadway across church property. This case illustrates that a church that tolerates such use for a sufficient length of time may later be precluded from objecting to it. Johnson v. Jones, 977 S.W.2d 903 (Ark. App. 1998).

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