When setting up certain integrated residential developments, especially resort ones, developers usually create easements by necessity, often imprecise and vague. These inaccuracies frequently lead property owners to take legal action.
When setting up certain integrated residential developments, especially vacation ones, promoters normally create easements of passage, by destination of the owner, often imprecise and vague. These inaccuracies frequently lead owners to the courts.
Thus, an Unfortunate Owner of the treatment inflicted upon them by their Neighbor, turns to the Court* to have their right of passage recognized on an adjacent parcel of land, since at the time of the cadastral plan filing, this parcel was identified as an alley. Despite these facts, the Neighbor has always considered it as their own and has always behaved as the true owner.
The evidence shows that the Owner has only passed through the parcel on a few occasions for the maintenance of their pool, that they have never used it for passage purposes and that it has never served as an alley. The Court considers it to be more of a tolerance than a genuine exercise of a right of passage.
There is no evidence that the Neighbor prevented the Owner from exercising their right of passage by installing a fence or any other obstacle with the purpose of invoking adverse possession. The court concludes that based on photographic evidence, versions of credible and independent witnesses, the Neighbor has clearly demonstrated the extinguishment of the easement through the non-use of the right of passage for ten years.
Some property rights are acquired through peaceful occupation, while others are extinguished through non-use.
*CA 500-09-026204-164
