Legal Questions Answered By Griffin & Murphy, LLP

Griffin & Murphy, LLP, is a boutique law firm in Washington, D.C. concentrating its practice in real estate law (including development, finance, leasing, zoning and condominium conversions), as well as estate planning and probate, civil litigation, and business law. The attorneys of Griffin & Murphy, LLP are licensed to practice law in the District of Columbia, Maryland and Virginia. Griffin and Murphy, LLP was founded in 1981.

Please send any legal questions relating to real estate, rentals, buildings, renovations or other legal items to princeofpetworth (at) gmail (dot) com, each week one question will be featured. Ed. Note Griffin & Murphy is a PoP advertiser. You can find previous questions featured here.

Question:

I live in a small rowhouse on a very narrow block. We all have very small backyards that are abutted by a 4’ wide “public alley”, which is essentially just a dirt path between two fences. Some neighbors say that this space is city-owned. On the plat that came with my house, it’s attached to my property but divided by a dotted line. There definitely isn’t anybody trying to protect or preserve this pathway, and in areas it’s fallen into disrepair to the extent that the weeds and mud take over by mid-summer…and some spaces have clearly becoming dumping grounds.

Some homeowners are now pushing patios or gardens back into this space, removing and/or installing new fences, and nobody seems to mind (in fact, it’s a great improvement and makes the properties more secure. Any thoughts as to the hazards or opportunities that this might offer?

On a somewhat related note, these houses are also bisected by the narrow passageways that have been discussed on POP before and at some point as possibly being for backyard deliveries or carting out night soil, etc. At some point in the distant past, the owners enclosed them and split them between front and back so that each owner has a nice secure space for storage. I’m not sure that these arrangements are noted in our titles with the city….

Please let me know if I can clarify or send in any images – I very curious to see what the legal eagles have to say!

Answer after the jump.

Answer:

In the diagram above, the orange shaded areas represent the existing buildings on your block and the black lines represent the existing lot boundaries. Your lot and the lots of your immediate neighbors are labeled A, B, C and D. We reviewed the DC zoning maps and there is no public alley behind these lots. The white area on the diagram behind lots A, B, C and D belongs to the owner of lot E, so to the extent you and your neighbors are removing fences that are located in this area, your actions would be considered a trespass to land. However, we took a look at an aerial photograph of your block and it appears that the fence you are talking about is in fact located on your lot and the lots of your immediate neighbors. The dotted line on the survey you mentioned was probably just the surveyor’s way of noting the existence of the fence and not intended to note that someone else has rights to the area in question.

Because your lot and the lots adjacent to it and are not separated from lot E by a public alley, it may have been that the previous owners of the houses on your block had an arrangement whereby they agreed not to place fences directly on the rear property line so that they could all reach their backyards by walking through the area that was not fenced-in – essentially, a makeshift alley. This was probably an informal arrangement. As long as all of your neighbors are in agreement with regard to pushing the existing fences back to the property line, we do not think you will have any problems. However, if one of your neighbors protests and claims that they have an easement over the area in question, you will have to argue that the previous owner of your house merely granted a license (rather than an easement) to cross through your property. A license is not an encumbrance on the property and would not have transferred with the title, so you would not be subject to it.

This response was prepared by Mark G. Griffin and Patrick D. Blake of Griffin & Murphy, LLP. The material contained in this response has been prepared for informational purposes only and should not be relied upon as legal advice or as a substitute for a consultation with a qualified attorney. Nothing in this response should be considered as either creating an attorney-client relationship between the reader and Griffin & Murphy, LLP or as rendering of legal advice for any specific matter.