Friday, June 10, 2005

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT EASEMENTS

EASEMENTS ARE TRICKY BUSINESS FOR UNWARY PROPERTY OWNERS

Derived from the Old French aisement, ‘convenience or accommodation’

Don’t Block that Easement!

Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.

Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.

You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?

Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.

No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.

The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.

Is an Easement Forever?

Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.

Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.

Overburdening the Easement

An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.

Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.

This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.

If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.

Conservation Easements

Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.

The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.

The Marin County Open Space District holds easements more than another 2500 acres.

If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.

Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at coastlaw@earthlink.net. A version of this story appeared in the Marinscope newspapers in Marin County, California.

232 comments:

1 – 200 of 232   Newer›   Newest»
Anonymous said...

Hello MS. Le Mieux,
I have an easement along the right side of my property. The township tole us they needed to dig up a pie b/c it was clogged or something. My husband tole them we had an invisible fence line in the yard and they needed to bwe aware of that. They broke the invisible fence line and my two beautiful yellow labrador retrievers are now at risk b/c their invisible fence does not work. What are my rights as a property owner. Can I expect them to repair their damage to my invisibel fence or to pay to have it reapired??????
Pleasae help???

Dotty LeMieux said...

You have not stated where you live. The general rule is you cannot do anything that interferes with the rights of the easement holder, in this case, I assume the Township? And they cannot do anything to interfere with your reasonable use of your property.

The question is was it reasonable for you to install an invisible fence right in the easement? Probably not.

Utility easements can be promlematic as they often involve pipes in the ground that need to be accessed for repair.

This sounds like what happened in your case. If your "invisible fence" was in the ground, so that they had no way to avoid digging it up, you may have interfered with their use of the easement.

Of course, ask them about repairing the fence. You can submit a claim for damages in most jurisdictions, but I would suggest installing your next fence well inside your property line away from the easement so this doesn't happen again.

Dotty

Margaret said...

Non-exclusive easement for ingress, egress

-----------------------------------

My state is South Carolina

When my parents died, all 4 children got 1/4 of a 100 acre hay farm shaped like a rectangle. After a lawsuit, I had to give brother #1 a 12.5' non-exclusive easement to his property although he owns 180 acres adjacent to the 25 acres my parents left him.

The question is: brother#1 has now had a surveyor place lg flagged stakes on my property 12.5' over on my land. He has just told us to stay off "his" easement... that I cannot even drive on it to get to the back of my property, even though that is the purpose of the easement for all of us. Best yet, he now says he is farming my 12.5' ft even though I pay taxes on it and rightfully own it.
1-Can he keep me off my own land and profit from it?
2-Can I remove his surveyor flags and farm my property now?
3-Does my brother have the right to use the 12.5' easement for anything other than ingress /egress?
4-There is no other verbage about this in my deed so I assume I maintain this easement.

What recourse do I have?

Dotty LeMieux said...

You really need a local lawyer to work with you on this. I am not licensed to practice law outside of California. You must have had one for the lawsuit. Generally speaking, however, he should not be able to keep you from using the easement for its stated purpose. Not being involved in your lawsuit or knowing the facts, my best advice to get a local lawyer on it.

There is also a good book from Nolo Press that you can check on Neighbor Law at http://www.nolo.com/

Good luck.

Anonymous said...

Hello Ms. LeMieux,

What do you think about this situation? A web site has been created...

http://www.northforktrails.com/lostcamproad/

They have just filed a lawsuit, this is getting serious, can you help??

Thanks

I am in California, placer county
and I am the owner.

Anonymous said...

Ms. LeMieux,
I am a property owner in Michigan of 23 acres and there is a river and falls on one side of the property line. The previous owner gave the state a conservation easement(for back taxes?). Can this easement be re-gained by us? Can the state charge people to gain access on our property?

Dotty LeMieux said...

to the Michigan property owner,

I am not licensed to practice law in the State of Michigan, so you ought to consult a local land use lawyer. You would need to know what your deed says about the easement. Typically these run with the land, which means they remain even though the property changes hands. It ought to be disclosed on your deed.


As for them charging money for people to use the land, it probably all depends on the terms of the easement. If it is for recreational purposes controlled by the state, probably they can do so.

Again, your local land use attorney can help you with these issues.

Good luck.

SYLVIE said...

Hello, we've lived on our property in ca. for over 20 years. Did not realized that there is a 10 ft recreation easement on the right side of our property. It belongs to our home association. It is supposed to be a recreation easement but has never been used. Can we reclaim this part of ourland. We have landscaped over the past few years and the association wants us to remove it all. Thanks

Dotty LeMieux said...

Hi Sylvie,

You need to review your HOA's bylzws and cc and r's. Also your deed. It's likley the easement is in there. If it has ceased to function as originally intended, you may have a good case to keep using it. Easements can be "abanadoned" and that mayb e what happened here. You might want to go to the HOA first and see if they will let you keep using it.

Have they said why they want it back now after all this time?

You may have a prescriptive easement on it as well. But reveiw your docs first and then if you need a consultation, send me your phone number or email.

Anonymous said...

hello..i have a easement on the side of my house that leads into a small piece of land behind my house, the owner of the piece of land behind my house wants to put a road on the easement to get back to the piece of land...problem is the easement nearly touches my house and if he put a road thru there it would take away my driveway and the road would be right next to my house...can he put a road on an easement like that if i dont approve of it?? I live in Salt Lake City Utah and im trying to find the rules, but dont know exactly where to go...any suggestions would be greatly appreciated!! Thank you soo much!!!

Amanda

Anonymous said...

Ms. LeMieux

Thank you for taking the time to read my question. I recently purchased a home in MD with an existing fence 7.5ft into a 15ft easement along the backyard. The yard backs to an unused, yet maintained field and was originally designated for development. This was 20yrs ago and the development will most likely never take place. Along our fence are 20yr old pine trees. I would like to build a new fence 4ft out with hedges planted at the property line (the extent of the easement). Considering the trees and fence already in place within the easement, do you see a problem with us doing this? The easement specifies use for drainage and utility, though nothing has ever been done with it.

Thank you
Jana

Dotty LeMieux said...

To Amanada and Jana,

Wow! Two easement questions in one day.

Amanda,

I assume the easement is for ingress and egress; if so, I'm afraid he may well be able to put a road on it, so long as it is within the boundaries.

You need to look at your deed and what the easement is for. I don't know about taking away your r]driveway; is it in the same place as they easement? it is probably to be used by both properties. As you are in Utah, you need to consult Utah laws. I am licensed only in California. See above for the Nolo book that may be able to help with your issues.

Best to work it out with the neighbor, if you can.

Jana,

If you have read to here, you have seen that even though it is 20 years later, the easement may still be valid. Find out if the zoning has changed and if development is still permitted on that piece of land.

Since you are in Maryland, you need to consult local laws and regulations. Putting a fence up may not be a problem depending on the size of the easement, and, of course, whether you have been using it all along. You may have acquired prescriptive rights, but you need to know the law in your State.

Best,

Dotty

Anonymous said...

Dotty -

I have an easement issue as well regarding a property in Lake Tahoe. As part of the Grant Deed, we were granted as Parcel Two "An easement for purposes of ingress and egress over the following described parcel..." The easement has a paved driveway that leads to our house and Garage. We were told by the woman owning the land that we were not able to put a Bear Bin for trash at the end of the driveway by the street. As a result, we put the Bear Bin on our property down the driveway, closer to our house. Now she is indicating the trash truck can not come down the driveway to pick up the trash. Is it your experience this type of activity ( trash pickup) would be a reasonable use? Or would the ability to put the Bear Bin at the end of the Driveway be considered reasonable use? Thanks for any information you can provide.

Dotty LeMieux said...

Hello Lake Tahoe owner,

How long have you been using the driveway for the trash pick up? A it is the only ingress and egress to your property, it is probably reasonable that the trash pick up would also need to use it; either that or putting your bin at the bottom, so long as you do not interfere with the owner's ability to use it, it's likely a reasonable use. Especially if you've done so for a number of years now.

What is her objection?

Anonymous said...

Dotty --

Thank you so much for your quick reply.
We settled on the house in Dec'07 and then did some remodeling and as part of that installed the bear bin. Previous owner had fallen on hard times and never had a Bear Bin installed -- I believe they are mandatory in Tahoe if you are storing your trash outside. As a result, there has never been a Bear Bin and this 'problem' had never come up. I believe her objection is that she does not agree it's an easement and it should only be used for us coming and going, nothing else. My first introduction to her began by her reminding me that we did not own the land. When I said I understood that and that it was only an easement, she indicated it was not an easement and can only be used for us to come and go. I believe her fundamental objection is the fact that something runs across her property and therefore she can dictate what the appropriate use of that 'easement' is. The Grant Deed clearly states it is an easement.

Anonymous said...

Dotty -

This is Lake Tahoe owner. I was wondering if you received my answer to your question of What is her objection? Any thoughts ? Thanks again.

Dotty LeMieux said...

No, I did not get your answer.

Can you try again? Maybe email me directly at info@greenlegal.net

Thanks.

Dotty

Anonymous said...

We bought a house in michigan 2 years ago.it was built in 1885. Recently the dept of transportation stopped in on a complaint.They state we can not use our driveway. they are stating that there is a R.O.W easement. 60 feet from the middle of highway to my home. my driveway is in front of my home. and we found that the easement line is going 1/3 into my home. when we looked at the county clerks records, we are right the easement is in our home. we turned in a claim to the title company and we havent heard from them. was it legal to sell us this home? is it legal to have a easement thru the home? any help will be greatly appreciated.

Dotty LeMieux said...

Hello,

First I must tell you I am not licensed to practice in the State of Michigan, so you really need to retain a local land use lawyer.

The easement should have been disclosed when you bought the property and you may have a cause of action against the person who sold it to you and the realtor, but check with a lawyer and do it quickly.

You may also have prescriptive rights over that easement as it sounds as though it has been used for a number of years. Again, a local land use attorney is your best bet to figure out your options.

Good luck.

Jeff Jackson said...

I am a builder in Idaho, we have a lot that has a irrigation easment wrong down the side of the property. Can you drill a well inside the easement or is a well the same as a building in that you can't put it inside the easement.

Dotty LeMieux said...

I am not an Idaho attorney, so you probably should get one to advise you. you say the easement is "wrong?"
Is it in a place different from that shown on the deed and map?

I'm not sure what it's for, or if you can get it straightened out, but a local land use attorney is the one to help you. Good luck.

Pierre Leclerc said...

I reside in Maine. There is an easement that runs alongside my property which the adjacent homeowner gave to a booster club as access/egress to a community park located behind my property. Can I build a driveway off that easement to access the back of my property. I do have access to the front of the house but not easily the back especially if I want to drive a vehicle their.

Dotty LeMieux said...

I am not licensed to practice law in Maine, so you may need a local attorney, but as a general rule, you cannot "overburden" the easement. If it's built for a certain purpose, your use as a driveway may not be considered compatible.

There may also be necessary local permits needed, so consulting a local land use attorney would be the best first step.

Best of luck to you,

Dotty

Dana said...

Hello Ms. LeMieux,

We bought a townhome in Maryland in a new community and were never told by the builder/seller that an easement was in the back of our property. From what I've learned, it is my understanding that as the buyer, our real estate agent should have done some digging to find this out, however, this did not occur. I have two questions. First, the easement is on our neighbors' properties as well. The other neighbors did not have a realtor, rather then builder acted as the representative for both buyer and seller. Was the agent required to tell the buyer about the easement since she was fully aware? My second question, is there anywhere in our deed that the easement should be discussed? There is no information about the easement in the deed.

Thank you!

Anonymous said...

Ms. LeMieux,
We are looking at buying a piece of property in San Francisco.

There is an easement on the property we are considering for the neighbor's deck. A second easement on the neighbor's property in front of the house provides a parking space for the lot we are looking at (the lot we are considering is otherwise landlocked).

Do you know if we would be able to build a garage on the easement granted to the lot we are considering?

Thanks very much for your time and help!

Dotty LeMieux said...

It's impossible to say without knowing more; SF has strict zoning, building and planning laws, so that might affect it. You need to hire a land use attorney to review the circumstances and advise you.

It's unlikely you could build a garage though, depending on the language of the easement,size, use the neighbors make of it, etc.

kjkooyenga said...

Dotty,

I live in unincorporated Orange County where we are zoned small estates (20,000+ sq feet) but we are grandfathered in at about 8700. We are considering a lot line adjustment from our neighbor but if we do an easement instead, could we build a pool on the neighboring property with our dominate easement?

Thank you for your opinion.

K. Tyler

Anonymous said...

My husband and I are considering buying a house which contains an easement for several land-locked homes. We've done a bit of research and the easement is land owned on the house we're thinking of buying. Furthermore, there is access to the back homes via an alley. It appears the easement is a preference and not a necessity. The house is in LA County (Altadena) and we'd love to reclaim the easement and extend the backyard, which is significantly cut off by the easement. Wondering how hard this would be and if because the neighbors have access, we'd have a better case to reclaim that land. Also, the deed to the house describes dimensions only, not ownership or when it was placed.

Dotty LeMieux said...

Thank you for writing. It is hard to answer your query without more details. Is there a map of the property showing the easement? Is it a granted easement or one that grew out of necessity at the time? If so, you may have a good case for changing it, as times have changed.

If it has not been used for a long time, it may have been abandoned. But you would need to show that. Have you talked to the neighbors and asked if you can simply work something out? It might be worth paying them to buy back. You might also check with the County or City on the status of this easement.

Jim said...

Dear Ms. LeMieux--my family has recently encountered a challenging situation with regards to an easement we hold. We own a house in Marin County that straddles the San Rafael city and Marin County line, up behind Dominican University. The house that we live in has been here since 1911; it was the first house on what was a 40 acre property. Since then, most of the land has been subdivided and sold off. Access to our house has been via a gated driveway that passes through a piece of property that has long since been sold. The gate "belongs" to this property. About four years ago, a house was built on this property, and subsequently was sold. The person who owns this house and the gate and driveway has recently told the UPS delivery person that she owns the road, and that he is not allowed to come up it to deliver packages to our house. We suspect that she has or intends to inform all delivery people this.
Our understanding is that the easement ensures us unrestricted ingress and egress from our property for normal and reasonable uses, which common sense would seem to include delivery of packages, but our neighbor seems to desire to inconvenience us in any way she can.
We have had escalating difficulties with this person, including her removing of the premise identification numbers from the gate, as well as threats to change the gate code with no notice. We have tried reasoning with her, but she very clearly is hostile to us, and is doing these things to irritate and antagonize us. We would very much appreciate your professional advice on the best way to deal with this increasingly untenable situation. If you are available for consultation, please do let us know. Thank you-- Jim

Dotty LeMieux said...

Hello,

Thanks for reading the Land Use News Blog. Yes, I would be available to consult with you next week. would you call my office and make an appointment?

Thanks.

It's 415-485-1040.

Dotty

Anonymous said...

Hello,
Im from Colorado. I purchased my home and have had problems with my neighbor regarding whether or not she can use my driveway to reach her back yard to her storage shed. She has her own access through a walkway to her back yard where she can easily move anything to her front yard. I had the property surveyed and no easements are on record. Could i put privacy fence across the back yard?
Thanks

Elaine said...

Hi Dottie -
Our home and our adjacent neighbor's home are located in the unincorporated San Anselmo hills.Both homes were built by the same contractor in 1955. Our neighbor's house has been passed to the daughter from the original owners.Problem : Our sewer line runs from the side of our home, across our neighbors backyard and down a hill to the public mains.There is no other route to these mains that would not cross ohter people's property (landlocked). 2 years ago, our neighbor installed a swimming pool and concrete surrounding deck above our sewer line. This was done without any county permits.We have alerted the county to this and they indicate other than fines, there's not much they can do. We assume this is an easement of necessity however, it is not recorded and appears on no maps.Our neighbor claims she did not know our line was there, even though it joins with hers and the entire area was excavated during the constuction.We even discussed the situation standing right next to the exposed lines, during constuction. In short, she is not telling the truth. If our line were to break, due to natural causes or as a result of the construction, he pool, etc. would have to be dug up to gain access for repair. Questions :who would be responsible for these repairs ?In that event, could she deny us the right to send workers onto her property to perform repairs ? If so, what would our recourse be ? Does the County bear liability if they approve the permits the County Enforcement Inspectors has now required ? Your reply and any further ideas would be most appreciated !!

Rhonnie said...

Hello Miss LeMieux,
My husband and I purchased a home in beautiful Montana last year and have lovely neighbors that have an access easement thru our property to theirs. There are currently three of us that live on our lane. There is also another access easement that was granted sometime ago to a property holder that has yet to develop any part of their property except for a road off our lane. This vacant property borders an additional piece of property owned by the property owners brother which has been developed and they are currently living there. He has been directing guest traffic from his home to use the developed road thru the vacant property and exiting onto our lane. He was not granted an access easement thru our property. It proposes a problem as the access road is only a one way road which is to only service the homes that are actually located at the end of the lane. Is this legal for him to be doing this, and do you have any suggestions. Many thanks in advance for your response.

Dotty LeMieux said...

First, thank you for posting to Land Use News. Second I am only licensed to practice law in California and so cannot give you legal advice., You should seek counsel from a local land use attorney. Generally, though, the issue of what kind access is appropriate over an easement depends on the terms of the easements creation, and whether the new use is overburdening the easement, or is a use that could be reasonably foreseeable when the easement was created.

Yo do not say whether the brother's property can be accessed in any other way. Or if they only way in is through your easement. And I'm afraid I don't get the part about it being one way. What happens when people who come in want to go out again? is there another way out?

You might pool resources with your neighbors to hire a local land use attorney once you have researched your title and deed to learn exactly what the easement is supposed to be for.

Best of luck.

Anonymous said...

I have bought a property in california and was told I will not be isssued a permit for a mobile home because of an easement issue. There are several property owners that are situated along a private road that I need the right of way to. the problem is none of them live out there it is bare land with dirt roads all over. I need to know what can I do to legally gain right of way to get my permit. Contacting all the owners seems as if it will not work. Some can not even be reached for me to ask. I am stuck.

Anonymous said...

How can a prescriptive easement be proven and how would a potential buyer know a prescriptive easement exists if it is not recorded (therefore wouldn't show up in title report)?

Dotty LeMieux said...

Generally, a prescriptive easement would be proven in court. You can talk to your potential buyer about what you believe to be one, or you might work out a deal with the owner of the property over which the easement runs.

What state are you in? I am not licensed to practice law in any other state than California, so you might check with a land use attorney near you for particulars in your State.

Good luck.

Anonymous said...

Greetings. Believe it or not, I have a new easement question to add to the many existing here. I'm in the process of buying a condo in San Francisco and there is an easement in my C C & R stating that my upstairs neighbor is allowed to move large furniture through the inside of my unit. Then they can access our shared back yard that is an incline towards their unit. As of current, they state that theyve never needed to exercise this right and have been able to move Ll current furniture through our shared stairway. I'd like to remove this provision, however the seller of my unit insists that it is illegal to remove the easement. Does this sound correct? I plan on calling my local real estate assn but would love your candid opinion.

Thanks!

Dotty LeMieux said...

Hello Condo owner,

If it's in the CC&R's you may well have to get a amendment to them. Check with your board. If you and the owners of the other unit are in agreement, you may be able to have it removed. It seems odd; is there a very difficult stairway to navigate to get upstairs? is it a very old building? It may have been put in there for a situation that no longer exists. Piano moving for instance, although people do have pianos hoisted up all the time.

So without seeing the provisions, I can't say much more than that.
Good luck.

Anonymous said...

Hi, I live in Maine. I have a deeded land easement, right of way, granting ingress and egress and the duty to assume my share of the maintainence thereof.

My neighbor had a survey done, the metal survey pin is in the ground, he left the wooden 3'tall stick in the easement near the pin for 3 months. I asked him to remove it so I would not hurt my car, trip over it, and because it blocked access to my backyard. He would not move it.

I moved it and now he is suing me for trespass.

How do I search Maine law to find out if it was ok to move the stick?

Dotty LeMieux said...

Hi there,

I am not licensed to practice in Maine, You can check with your law library or online for the Maine statutes. Generally however, the owner of the easement cannot interfere with your use of it. So if his stake is keeping you from driving in and out, and that is the way you normally go, you should be able to to make him remove it.

Good luck.

Anonymous said...

An owner of two adjacent lots in a California city wishes to record a covenant combining two lots for the purpose of building one single family residence. Can the owner also record an easement for the purpose of building a covered walkway/patio across the shared lot line without a setback variance?

A covenant is being proposed to avoid the need for a public meeting on a parcel map to combine the lots as one building site. The covenant will require demolition of portions of the building when either lot is sold to ensure that both lots meet the development standards of the zoning code separately if one lot is under separate ownership The owner wishes to build a covered patio/walkway across the shared side property line connecting what otherwise appears as two separate single-family residences.

Can a recorded easement be used to: 1) allow construction across the shared side lot line and 2) override the need for a variance from minimum side yard setback requirements from the development standards of the zoning code?

I would appreciate any input you can give me. I have never come across this situation. Thank you.

Lori Trottier, AICP (949) 235-3094

Anonymous said...

Ms LeMieux,

I live in North California and share a paved private road for access to individual homes with several other neighbors. Historically, we have all contributed to the maintenance of the road and I would be happy to maintain this arrangement. Recently, however, an issue has come up with respect to a needed repair of the road and there appears to be a difference of opinion regarding the manner in which the road should be repaired. My question is who is legally responsible for the repairs and who carries the liability for anything that may happen as a result of the road being repaired improperly? Is it the owner of the property itself or those who have an ingress and egress easement on the property. I am also uncertain whether I own the property or just have an easement. My deed shows
two parcels: parcel 1 on which my house sits and parcel 2 which is described as an easement granted in favor of someone who was previously the owner of at least one the other properties accessed via the paved road.

Thank you

Anonymous said...

hello Ms LeMieux,

I live in Ky and have a fairly simple situation which I hope you can comment realizing that you're not in this state. I have a 10 foot sewer/water easement running the length of my backyard (extending much longer - to the street). I recently installed an invisible fence on the easement and my neighbor is claiming it's on his property. Does he, or do we own the land on the easement? Do our property lines meet in the center of the easement and we retain the "rights" to what happens on either side or is the sewer/water easement the propoerty of the city, and we can not make a claim on the land? Thank you for your time.

Dotty LeMieux said...

Dear Ky,

You need to have a survey done, if you do not have one, to know where you boundary is. I can't tell you if you share the easement with your neighbor without that information. Generally, you can use the easement, if it's on your property, so long as you do not interfere with its intended use.

An invisible fence may potentially interfere with the City's maintenance of the sewer, if it zaps a worker, so I'd think about that aspect too.

Good luck with this.

Anonymous said...

Here is a strange one...

I purchased a 3 story commercial property in Pennsylvania a few years ago. On the side of the building (affixed to the structure) there are 3 huge billboards. I called the sign company that is managing these signs and requested that they should be paying me rent for the billboards. They state that they own an easement to the side of the building and that I am not entitled to any compensation for the use of the side of MY building. I was under the impression that an easement is for land use, access, etc. is this correct??

Dotty LeMieux said...

You need to check your deed. As a general rule, If there is an easement it ought to be on there. If not, you may have a cause of action against the seller, if he has allowed this use without letting you know. Since it is is in plain site, the onus may be on you to have checked into it before purchasing the building. Is this is interfering with your business?

I am not licensed to practice law in any state other than California, so you will need to run this past a property law/real estate attorney.

Good luck.

Anonymous said...

There is an easement on the deed when the sale of the property 3 owners ago. I just did a search of all the deeds, since 1994 (that is when the easement was recorded), but I just find it strange that there could be an easement on the actual property itself. It's like he (the owner that sold the property back in 1994, is still part owner of the building itself...And is collecting rent on the building. At least that is what it feels/sounds like...

I could understand if an easement on the land where he could have erected a freestanding billboard would seem more legal, since he is not utilizing my building to hold up his business.

Anonymous said...

When I bought my home in 1996 the real estate agent had the neighbor sign an encrochement to use the drive way the was partial on my land on his. He has now built a fence the denies me access. We just had a survey done today and his fence line is at least 5 feet on my property line. But I had to build my own access road due to him blocking my access that he signed for me to use. What are my options

Dotty LeMieux said...

Hello,

Thanks for reading Land Use News. Please note that I am licensed only in the State of California, so my remarks are general. I assume you and the neighbor both used the same driveway to get to your properties before the fence went up? The general rule is the holder of an easement may not do anything to interfere with the owner's use of the land outside of what the easement grans him.

So putting up a fence does just that. How long has it been there? He may be trying to gain more land by way of a prescriptive easement, if it has been there more than 5 years. You need to check with a local land use attorney, but from what you have said, he is in violation of the easement terms, if it indeed is an easement.

You called it an encroachment. It may be just a license for use as a driveway (ingress and easement) not a true easement. Check your deed's language and you may want to consult an attorney as soon as you can do so. Of course, asking him to remove the fence and explaining how it interferes with your use and is beyond what he was granted (if anything) should be done first.

Good luck.

Lindsey said...

Hello
I am writing you to maybe have you help us out. We are in a horrible situation with our current property management company. We own our Villa located at St Louis, MO. Just one week ago we were informed by a neighbor that there is a tie wall behind our property that we are needing to repair. The cost is over $25,000 split between us five neighbors. According to the property company this is our property. We were never under the impression this was ours. In our survey it does not go past the fenced in back yard and everyone was under the impression this is common ground. However, I know that the subdivision paid to put up a white fence that is on top of the tie wall about 2 years ago. When questioned why they paid for the fence, but do not assume responsibility for the wall, Allan (the property manager for our condo association) stated, "we made a mistake" and stated that the wall was not bordering common area.
The first addressed issue of the tie wall was in 2008. At the time, we were told by the prior property manager that the wall was indeed their responsibility as its on common ground and it was not in the budget for that year. The next year, 2009, I again questioned the time frame in which this wall would be repaired/replaced. At that time, Allan was the property manager, and he told me that yes, it was their responsibility, and no, it was not in the budget. In 2010, I again asked about the wall and was informed that (suddenly) it was now our responsibility to pay for. We then attended a subdivision meeting, argued the issue, and was told that the few years prior I had been misinformed and that it was ours to pay for.

Now they are claiming it is our job to fix and we have until September to do so or else they will put a lean on our house. In this economy, no one has this money and many of the residents are on fixed incomes. We were never properly informed either. According to the property association letters were sent out last fall, my husband and I never got a letter. We just found out about this last week from our neighbor. So I have been trying to contact Allen from the property company to only have him ignore me. I have been requesting the following information about getting a copy of a survey, information about the white fence and who put it in and who paid for it and why it was put in and am still awaiting a answer. The only time he got back to me was in a email yesterday that he will be on vacation until next Tuesday and will deal with this then. We are really at our last resort here and just need someone to help us get answers. I am going to City hall tomorrow to pull all records of any permits that were pulled for our property to see if they even pulled a permit for this fence and to see who pulled the permit for the original tie wall.
If this is our property can we sue them for putting that white fence up? Also we are trying to sell our house and we can not sell it now b/c of this whole issue going on. They said if this situation is not fixed by September they will put a lean on our house. In the by laws it does say we are responsible for our property, but I am just not so sure this is our property. We are going to get a survey that goes over the property inch by inch. We have a copy of a Plot given to a neighbor by the Managment company that it shows there is no common ground behind us, but it does not even show the tie wall and if it is on our property or the other neighbors who back up to us.
This is just so stressful and shocking at the same time. Any help would be so great! Thank you!
I would think that proper notification such as a certified letter would be needed and for a job costing this much more time than what has been given- if indeed this is our property.

Dotty LeMieux said...

Hi Lindsay,

Sounds like you and the other neighbors might do well to go in on a land use lawyer. It sounds like a common wall, the responsibility of the Condo Association. If it's your responsibility you I would expect something in your deed or in the condo papers. If not, you probably need a lawyer to sort it out and advocate for you if they are threatening legal action.

Banding together with five other families should help keep the cost down.

Good luck

Anonymous said...

I have an issue I could use advice on. We live in Iowa, and our property has as easement of most of our driveway, so that the farmer who leases the farmland can get in and out to tend his fields. It has never been a problem -- until yesterday.
With no warning, no notice, 2 trucks pulled into my driveway, blocking my garage. We were watching and it appeared to be the type of truck that refills tanks of pesticide. No problem so far.
But within 10 minutes a helicopter zoomed down, landed in our driveway, and began refilling with pesticide .
We have serveral issues with this -- one -- we feel the farmer should have notified us of this possibility. I have a small dog that's always loose outside, and since this helicopter hardly reduced his rotor speed, had my dog in fact been outside, he could have been sucked up/ injured by the rotors.
Secondly, neither the two drivers on the ground, one from the tanker truck, and one from a pickup from the Agri-Service , took any steps to block the end of my driveway to prevent entrance until this helicopter landed and departed safely.
There is a blind curve to my driveway, where the helicopter set down was 15 feet past that blind curve.
I was expecting a UPS delivery -- had the UPS truck come around that blind curve, the 15 ft. rotors on this particular helicopter could have struck him.
From a safety standard, this was a very unsafe maneuver .
The farmer called me -- after he found out I was upset with the men from the Agri-Service for doing this with no advance warning to me. The farmer asked me why I had a problem with ' him giving that helicopter permission to land on his property ? "
I reminded him my property lines include that whole driveway, and that he has the rights of access and egress , but I did NOT feel those rights included landing any type of aircraft, especially with no thought nor consideration given to how I might be affected.
Do I have a valid complaint ?

Jennifer Underwood said...

Easement Situation....
Our property is located about 200 ft from the adjacent house on our left. Both septic easements for the two houses are on a 50 ft. strip of land that the land owner behind our house actually owns (just bought). Can he do anything with that strip of land? He has access to a road from the other side of his land. Also....same situation....this new land owner told our realtor (we have been here for 2 yrs but he contacted her at some point) that he is planning to put up a fence. His property and our property meet dead center under a power line - he can't put a fence under that easement can he? Also, we have a septic easement for another piece of property on the corner of his property...can the fence cross that? We are concerned with the resale value and issues that may arise there. Any suggestions here?

Thanks!!
Jenni F.

Anonymous said...

I have a garage in the rear of my house, and it has an ally leading to it. we havent used it very offten, and when we did, my neighbor said he didnt have an issue with it. He since had a change of heart and decided to complain about this, and went as much as saying it was his property. I have always heard that the alley was an easement to my garage, but do not know for sure, so I stoped driving back to my garage. Can you please tell my how to find out if I have the right to get to my own garage? By the way I live in Mishawaka, Indiana

Dotty LeMieux said...

The first thing to do is check your deed. If it's a recorded easement, it will be found there. If it's an easement of necessity, that is it is the only way to your garage, you have probably created it by your use.

Do others use the alley to ingress ans egress? It may be a right of way created as part of the subdivision. You need to check local records before you know much more.

Good luck.

Anonymous said...

This may be a little difficult to describe...I own the driveway which goes to my neighbors home. We have an easement from back in the 60's with the first homeowner's since then the new home owner's bought the land behind them which goes to the next road below. Can i have them now make their own access road to their propery from the street behind their home.. they own from their house to the street?

Dotty LeMieux said...

Have you discussed this with them? If they now have their own access, they may not need yours, but it might depend on how difficult putting in a new road is; is the easement was "of necessity" or is it in the deed? You may want to compromise and buy back your easement. Without knowing more details, it's hard to say. And I do not know what state you are in, and I am not licensed to practice law in any state other than California, so you may wish to consult a local land use attorney.

Jennifer said...

California: Santa Cruz County
My situation is clear. I have a deeded 50' right of way for road and public utility use. When I bought the property, the neighbor has had a locked gate with a key pad and electronic 'clicker' access. He didn't a guy I had up to haul rubbish and took out the keypad. My access is now seriously obstructed. The question is, how do I go about restoring my access. Do I have to hire a lawyer? Can I go to small claims court? Call the Sheriff? Or simply cut down the gate?

Jennifer said...

Santa Cruz County, California:
I have a deeded 50' access for road and public utility purposes. This is the only access to my property. The neighbor has long had an electronic gate . . . tolerated . . . using an electronic key pad for entry. He has removed the key pad, thus making it impossible for people to get to my property unless I personally go down the road and let them in. This cannot be legal. My question is, how do I deal with it? Can small claims court be used? Or can a Sheriff be called on to enforce property rights? Or does it have to go through a lawyer?

Anonymous said...

We own land in WI and to get to it we have an easement to use neighbors driveway. Can they put up a chainlink fence with lock if they give us a key. This land is recreational land, not our house.

Dotty LeMieux said...

So long as they give you the key, it should be ok. Why si this a problem for you?

Anonymous said...

I didn't want to go into the long story about fence being locked, but there is another couple that have a lot on this driveway that have not really been up to it for the last year because they are selling it, the realtor does not have a problem with it being lock, and either do we.(We have the last 2 lots on the driveway,
Lot 2 is for sale. ) It is the owners of lot two that have a issue saying that they have an ingress/egress easement. The problem arises because Lot 1 owners and us, Lot 3 and 4 owners have are campers up there and other personal belongings and we just want to protect our belongings by discouraging the public to just drive down the driveway on their own. The realtor even put up a lockbox, which Lot 2 owners cut the chain, took the lock and lock box. They have always had a key to this lock and never been a problem with it being locked until they put Lot for sale. We are not denying them access and realtor does not have a problem meeting people at the land to look at it if they want to see it. We live 3 hours away from this land so we can't keep checking up on our property. The igress/egress easement is for utilities and phone, which they is no electricity on the land.

Thank You

Dotty LeMieux said...

As long as who are entitled to use the access easement have access, it should not be a problem, and they do not have the right to cut the lock.

Anonymous said...

CA....HELLO, JUST A QUICK QUESTION, MY PERENTS BUILT A HOUSE IN THE 20S,I OWN IT TODAY THE ONLY ACESS TO THE GARAGE IS FROM THE REAR OF THE HOUSE VIA DIRT ROAD, IN THE LATER 50S THE PUC INTALLED A LARGE WATER PIPELINE, I ALWAYS HAD ACCESS BUT RECENTLY THE PUC PUT A GATE UP AND IS DENYING ME ACCESS TO MY GARAGE, CAN THEY DO THAT??

Dotty LeMieux said...

You don't say if you have an easement over this land, or just have used it all these years. You may have an easement by necessity or acquired one through prescriptive use. If the PUC owns the land, they can use reasonable measures to protect their asset, but if you do have an easement, and it is the only way in or out of your property, you ought to tell them and ask about getting a key to the gate.
Have you tried that approach?

Anonymous said...

Hello Dottie, we lived in mississippi. 5yrs ago,we purchased land and built a house at the same time as our neighbor. The 1.5 acre lots we purchased are directly behind a 3 acre lot that has since then been sold. We have a 385 by 30ft easement running along the back end of the 3 acre lot(this is in his deed) however we only use like 15 feet of this easement and allow him to use the other 15ft long with his yard because it would take up a nice portion of his yard. Can he claim the other 15 feet as part of his yard and keep us from using it in the future? Also he now he wants to put up a fence and it is too narrow of a space left for larger vechicles to enter in and out without possibly damaging his fence. Also we have gas and water lines running down the side of the 15ft which is well within our 30ft easment. If he puts his fence up to the 15ft that we are using he is putting our power lines on his property.This a very difficult neighbor to get along with and we are afraid that if something happens he wouldn't allow us to fix the problem without alot of hassel.Would it be wise for us to go ahead and access then whole 30ft to avoid future issues although it takes up a nice portion of what he is using for his yard? We have tried and tried to work with this guy but this is ridiculious.

Anonymous said...

Hello Dottie, We are buying a home with 10 acres in Chattahoochee, Florida and there is an driveway within 15 feet of our home that splits our land and we are raising farm animals cows, chickens, turkeys and goats. Can we put up automatic gates that open with keypad codes to help keep are animals from wandering off our fenced in property? We also have slow down signs farm animals and pets and that doesn't help slow them dowm, The neighbors have already run over one of our cats. The gates will not deny them access but will keep our animals on our land. Thank you so much, We wre told when we put the down payment on this property that the neighbors have run all former owners off this property.

Bill F said...

I am about to close on a house in PA that has an easement for a common driveway between two houses. My house is closer to the road. The driveway continues further back to the second house. The property line runs down the center of the driveway. The easement is 12.5 feet on each side of the property line. The easement document says nothing about fences, it only addresses the common use of the driveway. My neighbor, has erected a fence. The fence starts at the road on his side of the driveway (his property) and runs back to just behind where my driveway access is no longer needed and he has installed a gate across the driveway and has installed a fence on my property on my side of the common driveway running back approximately 50 feet. He says since it is an easement, he has the right to put a fence on the easement. I contend that he cannot put a fence on my property. Who is right?

Anonymous said...

Hello,

I live in Placer County CA and I have a couple of questions about easements. First we live on an easement road, there are 6 houses on our street the road goes through the middle so we all have an easement going through our properties except the last house. Two of the neighbors got together and decided they were going to put in their own speed bumps. I am talking the really tall, sharp ones. They put in six and never asked or gained consent from any of the other land owners. Six in a distance that is about 1/3 of a mile... Can they do that?

Also a friend of mine is having a family dispute. Her aunt has an easement through her property. It was used about 10 years ago, but since then another road was built on the other side. She has a whole new address and the easement is no longer used. Can she get rid of the easement since it is no longer needed?

Thank you!!

Dotty LeMieux said...

You might need to check with your homeowners' association or local ordinance if any on this. It is probably a private street and there should be something in your deed about the easement. If it impedes movement on the street so that it cannot be used for its purpose, then you should be able to prevent people from putting up these kind of impediments.

The easement may have expired due to non-use or being no longer needed. You should review the deed. She might want to formalize its termination with the easement holder.

Good luck.

Dotty LeMieux said...

to Bill F. No, he cannot place a fence on your property, unless there is something about it in the deed, or license agreement, if it interferes with your use of the property.

Anonymous said...

Dear Dotty
Hi-I live In LA,California
My husband and I purchased a home knowing there was an easement down the side of our yard for"drainage purposes" and that we had to keep it and our driveway open. We put in a pool adjacent to it and the county approved an electric gate at the start of the driveway. Last we our neighbours threatened to sue us if we didn't remove the gate and the pool fence which runs over their side of the easement. Up to that point we had never been made aware that our neighbours owned a 2000 sq foot strip of land in our yard(part of an eagress /ingress easement)The realtor we used did not read our documentation before we bought and never made us aware. We would not have bought the home and we are in a real bind now. We will have a driveway gate right next to the pool if we can't figure out a solution. These neighbours are new but moved in 2 weeks before the gate was installed. the prior owners knew the gate was being put in but said nothing to us about shared property.
Of note: the original owners built their homw prior to ours and left their land and the easement outside their fence.
We are unsure how to proceed-no claims have been made on the land for 10 years .Do we have a case against our realtor?
Thank you

Dotty LeMieux said...

Not sure of the configuration of this easement. If your neighbors used it for ingress/egress, how did you not know it was there? If it's in your documentation, title, you ought to know about it. I'm not sure if you have a case against your realtor, if it's in the title. You need to consult a real estate lawyer in your area.

Best of luck.

paulcapcomm said...

I own a lot in anRV HOA. The HOA has encroachments in three areas of this lot, an electric pedestal and meter for the sole use of the HOA, 4 feet of an electric gate when open for departure from the RV park and 6 feet of a 5 foot block wall the belongs to the HOA. Can I charge the HOA for their enroachments and use of my property?

Dotty LeMieux said...

You do not say if you were there before the encroachments came in, if they are in your ccr's or tenant's manual. How did they come to be on your let? What does your rental agreement say? You need to know this before you can make an intelligent decision of what to do about it. I assume ou have spoken tot he HOA about this?

Jesus V. said...

Hello Dotty, My wife and I are looking to buy a lake front lot (.34 acre) in Maize Ks, with a drainage easement on the left side of the land line. It's 20' wide and it's divided between the neighbors land and the new lot, 10 feet on his side and 10 feet on the lot. Could this be a negotiating chip for a possible decrease in the asking price? Also can the easement potentially decrease the value of the land/home that we build? Thank you in advance for your help.

Dotty LeMieux said...

It is hard to assess whether it's a liability or not. What is the being drained? It may be necessary to both of the owners on either side, in which case it is unlikely to be a negotiating chip. If it's only useful to one owner, it may be useful.

The easement should be taken into consideration by the seller. Also, check with your local planning department. make sure of your boundaries with an accurate survey and good luck.

Anonymous said...

Hi,
I live in Oregon and bought a rental property that listed an easment disclosure with our neighbor that included stairs leading up to the rental's front porch and a long walkway to the back enterance of the house. We were presented with the easement boundaries by our realtor and the seller's realtor. A few years later, the neighbor next door let us know that we could not use the stairs leading to the house anymore as he needed to make some changes to his property lines. After some researching with a lawyer, it turns out that the easment we had from the 1950's listed the easement "2 feet south" which is very vague and ended up being an easement on our own property 2 feet south of the house (for a house that used be located behind our rental), not the property line as presented to us when we bought the house. Because the easement was presented to us as 2 feet south of the property line, we purchased the house. We would not have purchased the house had we known we had no easement.

Can the seller or our agent be liable for the costs we incurred to re-do our front enterance which involved the loss of access to the garage and access to the back of the house?

Dotty LeMieux said...

The short answer is, generally, yes. You would need an Oregon lawyer to advise you, but usually the realtor and possibly your title company as well, would have liability. The title company should have been able to learn of the true easement.

If you have used it for a number of years, and those prior to you as well, it is possible you have gained an "easement of necessity" if there is no other way in or out of the units. But do seek advice from an Oregon property attorney. And good luck. Thanks for reading Land Use News.

Tristian said...

I have a question, My sister inlaw owns her home and the city has been harassing her every month about one thing or another, this time they are telling her that she has to get rid of her truck that is sitting in her driveway. It is an old truck, it is not leaking or causing any harm. Can they make her move it? Also does anyone know of something that we can look at that will tell us the rights she has with her home and the property? Please and Thank you. Oh and this is in utah not sure if that will help at all.

Dotty LeMieux said...

Many cities have ordinances against "blight' or even specifically against storing non-working vehicles on the property. You will need to check the ordinances in yours. Did they not cite it whatever they issued telling her to move it?

Good luck.

Anonymous said...

I have a question for you Ms. LeMieux. We are looking at a property in Napa County that does not have its own well. When the house was built sometime in the late 80's they got an easement from the neighbor across the main road and the well is located there. The neighbor says the well is leased and is set to expire he believes around 2025. The seller (the bank) states that they think it was a 99 year lease started in 83. The neighbor with the well easement is still looking for his papers on the lease. What are your thoughts about this? It is not a deeded property right then? How would one even validate this information? Thank you for any info.

Dotty LeMieux said...

it should either be in the deed or recorded in the recorder's office. What does your title company say?

If there is no record, it may be a private lease agreement. is the neighbor willing to continue the lease, if that's the case? You would need to clear this up before you buy, if you are planning to build, or make sure the property has water, or you will not get a building permit.

Mary J. said...

I live in CA and own an easement for a driveway and pedestrian walkway over and across 10ft of my neighbor's property in between our two homes. We both have rectangular lots and his house extends all the way to the back of his lot. My house extends halfway and has a carport in the rear. When I bought the house, it was assumed as a shared driveway. We have a gate in the front of the driveway on the street side. My neighbor used to use the driveway, but for the past 2 years has not so I began parking my car in front of the gate blocking his access because the gate is very tedious to deal with. He is now trying to sue me for the easement because he says I am blocking the ingress and egress to the back of his property. If my easement agreement on my grant deed does not specify I have to allow him ingress and egress and only states "An easement for a driveway and pedestrian walkway over and across 10ft of Lot 33" do I have to allow him to use it?

Wendy said...

I live in California and have a 7ft easement on my neighbor's property granting me a driveway and pedestrian walkway. There is a gate in front of the driveway that both of us have keys to. When entering the driveway, I have to get out, unlock the gate, drive to the rear of the house, them walk back down the driveway to lock the gate. The whole process is very time consuming and I don't feel safe doing that at night. I have spoken to my neighbor about removing the gate, but he is against it because both of our basement doors will have open access to everyone from the street. If I choose to remove the gate anyway, does my neighbor have any legal right to dispute it since I own the beginning of the driveway?

Dotty LeMieux said...

To Mary J.

A driveway is for the purpose of ingress and egress. I assume it means to the neighbor's lot that uses the shared driveway? Make sure you know where your boundaries are and if he has another entrance to his property he has been using the last two years. Although that is certainly not likely to be seen as evidence of an intent to abandon it.

Dotty LeMieux said...

To Wendy,

Generally the neighbor may lock the gate so long as you have easy access to it. I'm not sure why you can't just park right on the other side and relock the gate before proceeding to the rear of the house.

If it is truly a dangerous neighborhood, you might get an electronic gate that you can both operate from the interior of your car, with a remote or a keypad with a code.

Anonymous said...

I live in South Carolina and our electrical company has asked us to allow them to run lines through our property to allow others behind our property to have electrical service. My question is, Can I charge the electric company rent for my property they are using?

Dotty LeMieux said...

You need to check with local authorities. Is it a private company? is it state or local? Do they already have an easement for utilities? Check your deed first of all.

Good luck.

Anonymous said...

Hello,

Enbridge gas pipeline runs at the back of our property locates in Frankfort, IL. They have started some maintanence work on the pipeline, cleared the easement but have already encroached past their easement onto our lawn, cleared some trees and removed a fence. They stated they would seed the lawn and replace the fence ( we have 3 yr old twins so it is a safety issue) and they offered us $500 for " temporary workspace use" she stated that is normal for 150 ft x 150 ft beyond the easement. That seems crazy to me. They are not done with the work and we fear if we accept the check and they encroach more it wouldn't even matter since she said the $500 would cover 150x150. That is a huge area and I think she is just trying to get us to take a small check.

What should the real compensation be? They are past the easement, her response was also that the trucks need room to maneuver...well then they should have had a bigger easement.

Thanks,
Sherri

Anonymous said...

Heya i'm for the primary time here. I found this board and I in finding It really helpful & it helped me out a lot. I'm hoping to
provide something again and aid others like you helped me.
my page - yorba linda plumbers

Dotty LeMieux said...

Thank you Mr. Yorba Linda plumber. I'm glad I was of service. Best to you.

Anonymous said...

I own two parcels in Ca. Only parcel "A" has an easement through a nearby landowner. The easement is referenced in our deed but reads, "Said grant is intended to be in gross, divisible, assignable in whole or in part, and to be used for ingress and egress for all purposes and for public and private utility purposes." What does that mean? I am hoping it means I can assign it to myself and use it for parcel "B"

Dotty LeMieux said...

Wouldn't that be nice? Get a little something extra for the family homestead. Unfortunately, that's not what it means. It means you can assign it to others of the intended purpose, ingres and egress and public and private utility purposes. Only. If for instance, someone up hill is landlocked and needs that easement to get to their land, you could assign the right to use it to them.

The land itself belongs to your neighbor over whose property it runs, and not to you to use for any other purpose. By the same token, the neighbor cannot interfere with the use of the easement for its intended purposes.

Anonymous said...

Great information, appreciate your knowledge. I live in Utah and have interest in the law regarding an easement behind my house/property. I have not seen either deed but Landowner A wants to make a subdivision and move the deeded easment to the center of her property. Landowner B property is above her property and the easment is his access to his property. She has presented "preliminary" subdivision plans to the city attorney and he prefers the easment be changed to line up with a developed road. Can the easement be moved without the consent of Landowner B.

Curious Neighbor!!

I_SAW_THE_SIGN@HOTMAIL.COM said...

THERES ALWAYS BEEN AN EASEMENT ITS A ROADWAY THAT GOES TO A ROADWAY IN A MOBILE HOME PARK. THERE IS NOW A NEW OWNER OF THE ROAD WHO HAS RUINED HIS SIDE OF THE ROAD WITH DIRT AND DEBRI .THE PARK PAID FOR THE ROAD TO PAVED AND SEALED ... WHAT ARE THE RIGHTS? CAN WE GO BACK AND MAKE HIM PAY FOR THE SIDE OF ROAD PAVED? CAN HE KEEP THE DEBRI THERE? HE THREATENED TO CALL THE COPS AND KILL THE MAINTENANCE MEN IF THEY TRIED TO CLEAN UP THAT SIDE OF THE ROAD. WE LIVE IN CALIFORNIA*NEVADA COUNTY

Dotty LeMieux said...

Dear I saw the sign,

Thanks for writing to Land Use News. If the park has a right of way over the road, they should be the one calling the cops, if he is threatening people. When you say the side of the road, do you mean on the passable area of the road? typically a road way must have 12 feet passable for emergency vehicles. if he has interfered with that, call the fire department. You can also sue him for encroachment, assuming you (the park) owns the easement. You can get the documentation at the County Recorder's office. It should also be in the deeds or leases of individual owners.

Anonymous said...

Our neighbours own a driveway and we have an easement to access our home which states that we are responsible for half the costs of repairs and maintenance.

A third neighbour has caused flooding on the driveway - we sued for damages. The owner of the driveway also sued. We reached settlement but our neighbour says we can't have any of the settlement as it's their driveway. Is that correct? We think they'll move and take the money without fixing the problem ... then we'll be responsible down the road for the fix as per the easement ... any suggstions? thanks.

Dotty LeMieux said...

I assume the money was to be used for repairs. Make sure it is used for that purpose. You may need to make a motion to tax costs to get your court fees back from the losing party. You may need to bring an action to enforce the judgement, if the other party does not use the money as directed. What did the court order say?

Not having seen the suit or the order, it's hard to say whether you personally can recover more than your costs, but my sense is you should have as the owner and you suffered the inconvenience. The owner may be entitled to more if he is in fact doing the repairs, and the flooding contributed to loss of property value.

I also don't know what state you are in. You might consult an attorney in your area, if you did not have one for the original suit.

Anonymous said...

Ms. LeMieux,

We have property that is divided into the 3 lots. The people that live on the back lot have an easement for a driveway down the right side of our land. They have not repaired the driveway in a long time so there are pot holes and dust blows all over our house and yard every time they drive by. They also have continuous traffic to there home because they run a business from there, so it almost sound like a highway. We have gas wells all around us drilling and they are now running the metal pipes down the driveway. The people that live on the back lot receive a check because they are letting the drilling company use the driveway. My question is should we be getting a cut from the drilling company since the easement is through our land and is there anything we can do about the traffic and repair of the driveway? Thank you for your reply.

Dotty LeMieux said...

You don't say where you live. I am only licenssed to practice law in California. But generally speaking, they cannot "overburden" the easement. Was the business there when they bought the property? Is it a legally operating business? They also cannot use the easement so as to interfere with your use of your property. You need to check all this out in deeds and property maps.

Are the gas wells yours or the neighbors? It sounds as though they may be using this for more than it was intended, and you may have a cause of action against them.

If you wish to settle the matter, sure, ask for a cut of the profits, but make sure all this is legal before doing anything. You would be well advised to contact a lawyer in your state to represent you in any negotiation or litigation.

Anonymous said...

Ms. LeMieux,

Thanks for your speedy reply. Sorry I forgot to mention I'm in Texas. It's a home business and they started it after they moved there. So there is always a lot of traffic all hours of the day. I believe it is a legal operating business.
The gas wells are not actually on the property. They are on the land behind the lots so they gave them permission to run the metal pipes down the side of our driveway and they work on the pipes at any time of day. The pipes are also leaking water which is puddling behind our home.
It was my mothers land to begin with a she gave the easement to them so I hope she still has all of the documents. If not is there a place where I can pull all of these documents myself? Just wasn't sure if we had a leg to stand on. Thank you for the information.

Dotty LeMieux said...

You cab to to your county assessor/recorder's office to look up the deeds, maps , etc. It sounds like you should have a good land use attorney to work with.

Good luck.

Anonymous said...

Hello Dottie,

I am from Florida
We are buying a home in a sub divsion, we are concerned with our driveway. There is a drainage easement the runs right next to it, and they are bending the driveway to stay as far out of easement as they can and still make it fuctional, My question is, how close to a water drainage easement can you put a driveway? What happens if they encroach on easement a little bit? Can someone come back to me in 10 years and make me move my driveway? The builder is keeping control of the subdivision if that helps, Thank you for your time and any information you have.

Anonymous said...

i access my property on a drive which i have been granted an easement through my neighbor property. The neighbors kids and dogs are routinely playing in the driveway and blocking our access and creating a dangerous situation with their dog darting in front of our car. THey own the property, i just have an easement though it to access my house. DO i have any recourse? My easement agreement states they will not block drive but does not preclude children from playing in drive. Please advise.

Dotty LeMieux said...

You don't say what state you are in, but in any event, anything on this blog is general only , not to be construed as legal advice. Just as children should not play in a public road for safety reasons, they should stay out of an easement with cars on it. Whether this constituted "blocking: the easement, would depend on whether it stops your access. A local attorney may help you with that.

But first, have you talked to the parents? Do they realize their kids are creating a dangerous situation? I would try that approach first, and always exercise common sense and caution when using the easement. You might need to post one of those caution children at play, or get the parents to do so, as it can be difficult to monitor children's every action near or in roads.

Good luck.

Anonymous said...

Hi Dotty, I bought a short sale, as-is property last year in Pasadena, CA that has a garage and parking in the back of the lot (alley access only). I did not know that there was an easement on the property until recently when I discovered that the alley is not public property, but is in face private. The alley is the only access to parking for 5 different homes. I contacted the city about the alley to repair pot holes that are only getting bigger with the rainy weather. Now, knowing that the alley is private property I assume owned by myself and 4 other land owners, I'm wondering who is responsible for repairing the alley/roadway. I have not yet seen the easement documentation but from looking at the assesors map it looks like the property goes over 4 pieces of land. Any info/advice would be greatly appreciated. Thank you!

Dotty LeMieux said...

Even though it is "As is" you should have been told about the easement. I suppose it is was there to see in the title docs, and you missed it? If it's private, yes, likely you would be responsible to fix potholes as a group. What have the other owners done in the past?

Anonymous said...

Ms. LeMieux,
I live in Michigan and have 10.5 wooded acres. I have a gas line easement going through my property which we were fine with. Now the gas company wants to extend the width of their easement and add a temporary work area which means they will be cutting down most of my woods. They offered $25,000 compensation but I moved to the country for the woods not to have 10 acres of grass. Can I deny this easement extention and if I am told I cant is the money negotiable?

Dotty LeMieux said...

Hello Anonymous,

You can always negotiate and I would suggest it. Is this a municipal gas company or private? It probably has some arrangement with the governing authority so you could possibly be subject to eminent domain proceedings? You might also check your deed and be sure that the easement is as you describe and not larger.

I would suggest a consultation with a local land use attorney to help you in any event.

Best of luck.

Baredrosa said...

I live at my with my mom in law who's owned her home for at least 45 years. The other day this concrete wall came crashing down due to the neighbor on back side of property has a huge macadamia nut tree where the roots must have grown out applying pressure into where the telephone company has an easement. A concrete wall seperates the easement, which by the way never been accessed or needed since day she bought home. Between wall and neighbors fence is about W6'x L48' x D6' which is compacted with dirt, rocks and other misc debris they added, reason unknown. The other day the wall came crashing down which at the time didnt even realize it was the wall because it sounded like an explosion at neighbors house when in fact it was the wall. Now the solid dirt is leaning and soon will fall as well. Who is responsible for all this damage, mess and such? I am thankful my dog wasnt there at time the wall fell or she would've been crushed to death. But still can happen if wandering or may cause damage to a storage house we built in back that concrete bricks landed few inches away. This easement ran along the back of about 5 houses down and 1 on other side of me. It appears tho that only 2 of us have such wall and others have utilized space. How do I find out if the easement is now hers? If it is, isn't it the neighbor's fault for not maintaining tree so not to grow into her property?

Fred said...

I am looking to buy a house that appears the easement is 1/2 on and 1/2 off the carport in Mississippi. It appears that the previous owners did use the non easement area (because of the gravel coming to the carport). Is there a way to change the easement, if it is where I think it is on the drawings?

Laurie Pitman said...

Hi Dotty, Thanks for your very informative post on easements. I live in Oakland, CA. I am building a house on a 4-home private drive. Part of my property is included in the easement set aside in 1925 for the private road that serves all 4 homes. My question: Can I count space inside the easement on my property, room enough for 1 auto without blocking neighbor access, as one of my 2 required off-street parking spaces? Am I required to have my near neighbor, who must use the easement portion on my property to get into his driveway, sign a letter verifying that parking a car there will not block his access? Can you direct me to Alameda county policy that governs such usage?
Thanks,
Laurie

Dotty LeMieux said...

Laurie,

Thanks for reading Land Use News. You might check with Oakland City Planning Department on its requirements. Also you need to check the language of your easement. If it's just for ingress and egress, you probably cannot park there. You may be able to get a variance if the other owners sign off, but that will be up to the City. '

You might want to engage a local attorney with experience in front of the zoning board in Oakland to advise you as well. But do some of your own homework first.

Best of luck.

Dotty LeMieux

Dotty LeMieux said...

PS, let me know how it turns out!

Anonymous said...

can i cut down trees in my easement?

Dotty LeMieux said...

Without more information, it is impossible to answer. What is the purpose of the easement? Do the trees interfere with the use of it? Have you even asked the owner of the property?

More information is needed.

Anonymous said...

I have an ingress/egress easement to landlocked property I own. This landlocked property also touches my residential property but the only way to get to the landlocked property by vehicle is thru the driveway easement. That said, can I use that easement for the landlocked property to also access my residential property (i.e., go to my landlocked property and then access the back acreage of my residential property as well? I want to build a garage on the very back of my residential property and cannot get there without using my landlocked property's easement rights. My neighbor has filed an injunction preventing me from doing so.

Dotty LeMieux said...

You don't say where you are or what the easement language says specifically. Is there a reason the two properties are not merged into one? Also, what is the reason given for not wanting you to use it for that purpose? If you have already been served with an injunction, you should by this time have an attorney in your area to address this. If not, get one, and do not ignore the hearing date on the injunction and be prepared to make your case to the court.

Good luck.

Anonymous said...

The easement language is ingress/egress rights. The tract of land that is "landlocked" and requiring easement cannot be merged with our residential tract nor do we desire it to be. One day, we would like to sell it and allow someone to build on it. Until that time, it allows us access to firewood when/if a tree falls on it and easier access to our property that runs along side it (we would not be able to get to the back part of our residential property easily if at all without the landlocked property and its easement). A "request for injunction" is scheduled. Does this mean we have to stop doing what we want until that is heard or is it after that hearing that we know if we are court-ordered to stop using the landlocked property as a mechanism to get to our residential property?

Dotty LeMieux said...

I would suggest you consult with a lawyer in your area right away. Injunctions are usually heard fairly soon. Unless a stay has been granted, you probably do not have to stop what you are doing, but I would recommend it, until you discuss this with an attorney. And to keep whatever good will is still left between you and the neighbor until then.

Anonymous said...

Thanks for your help. The "good will" with neighbor has been gone for some time now. Since the for sale sign was put up to sell our property next to him, he has had one lawsuit after another...all of which he has lost....but he vowed that we would never sell and put a house on that land next to him and he would spend $100,000 to do so. We told him to just buy the land for $30,000 but he refuses (are you getting the idea that the man is nuts? haha). We are.

Carla said...

4/17/13

Hi Dottie,

I'm so glad to have discovered your very helpful website. I'm sure I'll be referring to it again now that I'm aware of it!

Here's my dilemma:

One of the two neighboring homes built along the access road my husband and I own in Sonoma County changed hands a few months ago. We met the new neighbors and they led us to believe it would be their "weekend home" while they continue making their primary residence in San Francisco.

I have just been informed through a third party that they are actually planning to rent out their new home as a vacation rental. Our properties are zoned Rural Residential, and they have an easement on our road for ingress and egress.

The road has twenty foot wide "soft shoulders" on each side, and through the years we've endured many instances where major and minor ruts have been formed due to delivery trucks, utility trucks, neighbors' guests, and other uninformed persons parking and otherwise driving on the shoulders of the road. This causes extra work for my husband who maintains the shoulders using a riding lawn mower, and who takes pride in the clean and manicured look of the neatly mowed shoulders.

Does this conversion of a single family home to a vacation rental constitute an overburden of the easement? The home has a small circular driveway, and I can envision that the vacationers will find it more convenient to park on the shoulders of our road rather than load everyone's cars onto the driveway. Do we have a legal right to expect the homeowners to put parking regulations in their rental agreement? What are our rights and how should we handle the situation if we experience damage to the road shoulders?

Thanks for your insight.

Carla

Dotty LeMieux said...

Hello Carla,

Thanks for reading Land Use News. You need to find out what uses are permitted in rural residential first by checking with the County Zoning Code.

If your easement is for ingress and egress for a single family home only, you will have a good case for overburdening. But make sure you know what the deed says as well.

They may need a use permit to change the use of their property; so that is another avenue to pursue with the Community Development Department.

Parking on the shoulders is generally not included in an ingress/egress easement, unless specifically stated.

If you need help with this, an attorney's letter, or with navigating the County process, I am in Marin County and work frequently in Sonoma on similar issues. Let me know if you would like to schedule a consultation. My email is coastlaw@earthlink.net

birdsonthehead said...

I live in Washington state and have an deeded easement on my property that allows neighbors access to their property.

I am dealing with early morning newspaper deliveries for my neighbor that are waking me up because the easement is next to my bedroom window.

Can property owners create time restrictions for access?

Dotty LeMieux said...

I am assuming the easement is for ingress and egress, and that the truck is noisy or newspaper is dropped making a thud as it lands. Why don't you have the neighbor put up a newspaper box at the end of the drive, so the newspaper guy doesn't have to come up to your window?

If it's a noise matter, he generally shouldn't do anything unreasonable that disturbs your use of the property.

The issue is whether the newspaper delivery is unreasonable. That might be hard to show, so try working out a compromise.

Good luck.

Anonymous said...

I have a question about prescriptive easements in california. A new neighbor has bought the property containing the neighborhood swimming hole and has blocked access. This swimming hole has been used by the community for over 40 years. We are wondering if there is anything we can do about the situation. The neighborhood is in a very rural area of Humboldt county ca.

Dotty LeMieux said...

It's possible. Has anything been posted granting permission to use the swimming hole in the past? What did the previous owners say about it?
I'd have to know more, but it could be there's an implied dedication in place.

Check with a local land use attorney.

Good luck.

kevin said...

I have purchased a property that has a grant easement for a large billboard sign I live in California. The deed describes the sign and "grant easement" as on my property and has no record of any legal division of my land. So my question is the easement goes with my property, how about my ability to negotiate for a new lease with the sign company? Thank you Kevin

Anonymous said...

I live in New York State. Sewers are being installed in my township. We live on a dead end road. The Town is running a main down my street and needed to have an easement signed by my neighbor and myself. My neighbor signed the easement in exchange for getting some trees cut down and getting hooked up to the sewer for free. I refused to sign the easement. In the process of installing the sewer line and removing one tree they came on my land and tore up the yard along the whole property line. We have no public easement, they needed to obtain our signature. My question is do I have any recourse?

Anonymous said...

Hi Dottie,
My three children inherited a house in Tam Valley. After 6 years of renting it out, they decided to sell it. It has come up that there is a sewer easement running through the property. (It is a very complicated situation in many ways, but I'm just wondering about the easement question) And neither my three children nor myself live in the area. Mill Valley Community Services says that the actual sewer pipe runs along the garage on the property. If the sewer pipe does not run through the middle of the property, can the easement be modified to address where the sewer actually is physically. This will have a large impact on the sale price. Any advice would be greatly appreciated.

Dotty LeMieux said...

Thanks for writing to Land Use News. It's not clear where the easement is in relation to where the sewer pipe is. It sounds like the easement is in the middle, but the pipe is along the side? Is it possible they planned to put it down the middle when the lot was created? Find out where the other easements are that carry the pipe in your neighborhood and talk to the Agency involved, to see about adjusting it. You will probably need a reconveyance of the property in question and then grant them the easement in the right place if this is the case.

Good luck.

Statisfied said...

Hi Dotty,

What a great website! I'd be so appreciative if you could offer me some advice.

I recently bought a house in Marin County on a 203k rehabilitation loan. The house had a 25'x6' side retaining wall falling into it, which we removed immediately. It turns out this wall was on the neighbor's land. Above the fenced wall is a 20 ft by 15 ft sliver of land on a windy street, which she used as a sought-after parking spot. We have an easement around the outside wall, presumably to allow more private ingress/egress to a rental cottage out back. She has an easement over the corner of our lot to be able to drive into the parking spot. Clearly I think, there was a dispute over property lines and this land some time ago. I presume these easements are a result of a survey done on the land at the time. Also I should mention that a small mudslide last winter took the wall down, and lowered the parking spot by 1-2 ft of earth.

The neighbor thinks we need to replace the wall because we took it out, and it's been supporting her parking spot for 20 years. However, to support parking, the city says it needs to be engineered. We are willing to build a wall as part of a larger grading and water diversion effort; however, we don't want to pay for engineering. We would like to stay within the no-permit-needed 4 ft. wall.

Can you see any scenario where we are obligated to provide her an engineered wall to save her parking spot?

Thank you so much for any response,
Kevin

Anonymous said...

My property borders a dirt road which I have used for 30 years to get to the gardens at the back side of my land. I am subdividing and want to put a driveway off this dirt road. Do I need to get an easement?

Dotty LeMieux said...

You may have acquired a "prescriptive easement due to your use of the property. Is this the only access available? To settle the matter, you'll probably need to file a quiet title action, if you cannot reach an agreement with the neighbor for your use, with a recorded easement.

You don't say what state you are in, and I am only licensed to practice in California, so you'll need a local land use attorney to advise you.

Dotty LeMieux said...

Dear Kevin,

Not sure about what you are asking. Did you take down the wall, or did the landslide take it down? If it's her wall on her property, you might have just notified her of its collapse and she would be responsible for it. I'd have to know more about where these easement are to advise you of your rights in this particular case.

Let me know if you'd like to consult.

Anonymous said...

My wife and I run a dance studio in San Luis Obispo County. We rent the building and have been tenants for over 12 years. About a month ago, an adjacent business, without any notice at all, erected a locked steel gate across our back parking lot, completely blocking entrance or exit though their driveway. We still have access to an exit on the other side of the parking lot, but I don’t think you are allowed to erect a locked gate that has been an access point for that long of a period of time.

I don’t know where any easements do or do not exist and the landlord doesn’t seem to be motivated to do anything about it. How would you go about finding out if an easement exists, and if so, getting the gate removed?

Thank you.

Dotty LeMieux said...

Hello,'

Thanks for reading Land Use News. Your rights of use of the parking lot should be spelled out in your lease. If not, you might need to take it up with the landlord. Any easement should be noted on his deed, which you could access yourself at the County Recorder's office, but it would be the landlord's job to challenge it. As a tenant, you may be affected if your customers can not get in and out of the parking lot, you lose business, or have other inconveniences. It could be that the landlord, through his tenants, has obtained a prescriptive easement over this property even if there is no recorded one. But find that out first and see if you can enlist his help.

Good luck.

Anonymous said...

Hello, we just bought a property and it has a prescriptive grazing easement on the deed and it has fence on it can the easement be remove from the deed i want to place a mobile home on the property but i can't do anything with the easement on it can the easment be remove the property is in Tulare,county ca.

Dotty LeMieux said...

A prescriptive easement is one acquired through adverse use over the years, so at one point, apparently, a neighbor used that property for grazing long enough to acquire the easement. Does the owner still use it? You can't just "remove" it from the deed. If it hasn't been used in several years, it may have either been abandoned or acquired back by your seller.

Have you talked with the neighbor who has the easement? You should try that first to see if the easement is still needed. If not used for a long period, you might have a case to quiet the title back to yourself, but you will need to talk with a local attorney to see what options you have, if the neighbor is not willing to relinquish or sell it back to you.

Good luck.

Anonymous said...

Our HOA in coastal Florida enjoys a deeded beach access easement agreement granted by a property directly along the ocean.

The owner of the ocean property recently built a fence parallel to our beach crossover within the easment area and without first gaining our consent. The fence itself is not the issue - since it is attractive (as fences go), but it's located within two feet of our beach crossover platform. If we ever had to repair the crossover in the event of a storm or hurricane the fence would be in the way. If we ever wanted to widen the existing crossover (to allow for hanidcapped/wheelchair access - the fence would inhibit our ability to do so.

The owner who built the fence does not believe that he needed our consent to built his fence and does not feel that he should have to ever pay for its removal if we want to repair or replace.

We have approached him regarding an easment amending agreement but he seems stuck on the notion that he can do what he wants with the easement as long as his fence (as currently constructed) does not impact our ability to access the beach crossover.

Are we "in the right" or is the beach house owner???

Dotty LeMieux said...

Generally the rule is that the owner of the land underlying an easement cannot do anything to interfere with the easement's purpose. Is part of the deeded language that you have access rights to repair the crossover? If not, you may be out of luck, if access to the beach itself is not impeded. However, I am not licensed to practice in your stat and I would advise you get the help of a local land use attorney.

Good luck.

Anonymous said...

If someone is willing to grant an easement for access, and the options are for the granting of a lot line adjustment for access, or an easement for access, is there any benefit to getting a lot line adjustment?


rjj

Dotty LeMieux said...

Lot line adjustment means you own the property, but there may be tax implications, liabilities. I'd check with a local lawyer in your area.

Katherine said...

We purchased the waterfront lot adjacent to another lot we own. There is an ingress/egress easement "over and along" this lot to all property owners in the subdivision. The lot was originally supposed to be a public boat launch but it was abandoned and has been sold twice before we purchased it over 10 years ago. I was told by real estate attorney if we ever had any problems we could put up 8 ft of fence to allow the easement because is doesn't specify how much we have to allow. I was also told in order to terminate the easement we would have to have the signatures of the Majority of the property owners in th subdivision. We have had no problems but the la d across the street (not waterfront) is now for sale and the real estate co is advertising water access. Any advice?

Dotty LeMieux said...

An easement generally has a description in your deed, that definitively tells you where it is located. It is unusual not to have that.

Is there any other water access except along your land? I would contact a land use attorney in your area to help with this issue.

good luck.

tammy said...

Hi we just recently bought a house in Brooklyn, NY with shared driveway. The neighbor claimed he owns it because the previous owner didn't fight for it 15 years ago.the previous owner sent him two letters six years ago to asked him to remove the fence at the back because it's on our line,but he ignored the letters. What should I do?

Dotty LeMieux said...

Is it in your deed? Is it the only access to your home? I don't know what the previous owner's non-action 15 years ago has to do with anything. Did this guy sue the previous owner? If so, all that should have been disclosed if there was some legal suit that quieted title in the neighbor.

I would contact a local land use attorney to understand the situation.

Best of luck.

Dotty

tammy said...

Thanks for your reply.the driveway is the access to the backyard, we would like to park the scooter and the bicycles at the back,in order to do so,we need to use the driveway. My husband maybe need to park his car there to unload the groceries sometimes. He kept saying that the previous owner lost her right for the driveway after 10 years without fighting for it.we didn't know this until we bought the house. I googled and it does saying that you will lose your driveway if you didn't complaint within ten years.we talked to the previous owner,she said that the reason why she let them use the shared driveway fully because she didn't have a car.do you think we have a chance to win the case?

Dotty LeMieux said...

I'm still unclear on the not fighting for it part. I am licensed to practice law in your state, so you really do need to consult a local land use attorney.

He may mean the easement was abandoned by non-use, but your own local attorney is better able to help you. Good luck.

Dotty LeMieux said...

Sorry, meant to say I am NOT licensed to practice law in your state.

Shannon Loven-Thompson said...

I am purchasing a horse farm that is located in the back of a gated community. The land I am buying is not associated with the homeowners association and is not part of the subdivision. The homeowners association is telling me that I have to pay $1000 a year to use the easement to my property that is a deeded easement and comes with the property. I told them I'm not paying for the use of my easement and they told me it's a fee for using the automatic gates and street lights as well as wear and tear on their road. Is this legal? Can they force me to pay for an easement that is deeded to me? This is my only access to the farm for myself and all my clients.
Please let me know your thoughts.
Thanks, Shannon

Dotty LeMieux said...

Hello Shannon,

I assume this road is used by the people living there as well as yourself? Generally, the owner of the property underlying the easement can't do anything to hinder you use for the purpose prescribed, but they can make reasonable conditions that protect their rights. Shared maintenance is common. You should get a clear accounting of the costs associated with maintenance, lightening etc, and make sure you are not being overcharged. It may be that you and your clients have a greater impact than the homeowners coming and going, but I can't say without knowing more. Was this the practice before you purchased the property? Has it always been a horse ranch with clients coming and going?

Shannon Loven-Thompson said...

Yes the horse farm was built first and then the owner sold the front of the land to be subdivided into lots for a subdivision. Then a gate was built and street lights added. The horse farm has always been a public farm. I am now owner financing the farm from the owner whom also runs the HOA. I don't mind paying a small fee to help up keep the gate but I don't need the street lights....
Just trying to figure out if she can legally make me pay $1000 a year. She says HOA won't budge on this.

Dotty LeMieux said...

Did the previous owner pay the fee? I assume the streetlights are for the convenience of the homeowners? It sounds like a shared easement.

If the fees were the same previously, they may be reasonable, but I can't say without seeing the deed, the HOA documents and so forth. I don't know what state you are in but I am only licensed to practice in California. I would seek the advice of a land use attorney in your area. Best of luck.

Anonymous said...

Hello,
We purchased a home outside of Sebastopol, CA. We have an "easement for right of way" to access our home. The neighbors who own the easement property are disgruntled because the property had been mostly vacant for the past 10 years. Now with new traffic, they have been harassing us to stop driving and slow down. We always drive less that 10 mph in front of their home and tell our guests to do the same. They installed speed bumps and said that we are responsible for paying and frequently send us harassing emails. What rights do both we and they have? My car bottoms out if there are people sitting in the back seat with the speed bumps.
Thank you!!

Dotty LeMieux said...

They cannot do anything that interfered with you rights under the easement. Is there something in the language of the deed that allows them to keep traffic to a certain speed? It is reasonable that they would not want you speeding or stirring up dirt onto their property.

I'd have to know more, and see some pics, deed, map, etc. If you are interested in a consultation, I am in San Rafael, so let me know.

Thanks.

Anonymous said...

Hello, I have a concern regarding the only access to our home. Its a county road that has been abandoned. It does not go through. There are signs up saying Road Closed and Dead End, No Thru Traffic. It leads to our home and ours is the only house it leads to. Our neigbor owns the house on the corner and his address is on the cross street. He owns the property on the opposite side from ours but not the road we live on or have to drive on to get to our house. The county no longer maintains this part of the road. We have to maintain it. The neighbor on the cornerhas a driveway in front of his house but he also uses a side drive off of the road we have leading to our house, the only access and abandoned county road. Its a half mile long. I drive from our house to the end of it to wait for the school bus each day as the bus stop is at the end of it. He has told me not to sit there and wait for the bus. Told me I have the main road, the cross road to sit on. Its safer for me to sit at the end of the road we use to get to our home. He does not own that road. I called the police and they said that I have every right to sit there. They told h that, as well, and that he is not to bother me. This past spring he put up No Parking signs along the road where I wait. They are in the easment of the road. Not on his property. We are just starting school again and I am afraid of him approaching me again. These signs were put up by him, not the county. There are very dense tall weeds and reeds hiding the road from his house, also. I am in no way bothering him and his house is some distance from the road. Does he have a right to put those signs up? According to the officers, I have a right to wait for the bus there. I am in no way blocking access to his home. I feel harassed by this guy. He also has yelled at me for putting our trash out next to our mailbox which is where the garbage company told us to put it. It is on the main road in front of his house. We live in Michigan.

Dotty LeMieux said...

He cannot do anything to interfere with your rights, assuming you have acquired them over this driveway. If it keeps up, consult with a local land use attorney. Best of luck.

Anonymous said...

Hi, I live in Westport Mass. and we have two properties with a paper road in between that no one uses not neighbor or the town. We have been plowing it and taking care of it since 1990. How could we go about taking it over? Any recommendations you have would be helpful. Thanks for your time.

Anonymous said...

This is great information! Thank you for your generosity in giving your time and knowledge to answer these questions.

I live in the state of Indiana and own property that grants a neighbor an easement of ingress and egress to access his residential property (no other provisions are given in the agreement). This particular property is not our neighbor's primary residence, so he seldom uses the easement himself. He has, however, given permission to two school bus drivers to use the easement to access his driveway for parking. Since the buses have been using our drive to access his property, we have had to deal with a greater amount of damage (potholes) and maintenance to our drive than we are used to. We approached the bus drivers about seeking another place to park, but they insist that since our neighbor has granted them use of his property, they legally have the right to use the easement to access the property.
Could this fall within the intended use of the easement? Could two school buses coming and going twice a day be considered "overburdening" the easement?

Dotty LeMieux said...

The access is for him to access his property. It is anticipated that cars accessing the property will use it as needed; not school buses using it to park. He may have exceeded the easement and you ought to be able to stop him. But only a local land use attorney can help you sufficiently to deal with the issue. Keep photographic evidence of damage done, and uses made, and check the deed, then seek out local counsel. Best of luck.

Joel Blanks said...

I have been taking care of the maintenance of my neighbors empty lot for over a year. Is there any type of law that allows me to encroach upon his land?

Anonymous said...

Hi Dotty!

I've perused this particular blog section for an answer to my easement question but haven't quite found the scenario and issue that exactly relates to mine. Hoping you can shed some light . . . I bought a house 3 yrs ago in King County (Renton), WA and the sellers now live behind me because they did a short plat of the original lot and built their existing home on the back lot. Included in the purchase & sale agreement was an ingress/egress/utilities easement agreement to give them access, down a long driveway, to their home. The easement runs along the entire west side of my property and includes a 20'x20' square at the end of their garage that they use as a "turn around". To create the turn-around in relation to their garage, they had to encroach upon the NW corner of my property.(Incidentally, the sellers added the "modified" easement measurements - which now included the "turn out" - only AFTER I had entered into the purchase of the house, which was quite sneaky considering they had been living in their new home for over a year! They didn't actually RECORD the new parameters at the county Recorder's office until we were 3/4 of the way through the purchase process and by that time it was too late for me to back out of the agreement).

After consulting w/ them (out of courtesy), I built a fence along the entire easement and around the turn-around section without incident and they were present when the property lines for the fence were measured and agreed upon. Recently I painted both sides of the fence and because these neighbors didn't like the color I chose because it clashed with their house and exterior decor, they painted over my color on the outer side that faces their house. I was SHOCKED because I paid for the fence 100% and it is mine. After numerous people (including a legal professional and law enforcement) told them they cannot paint my fence for any reason, they have since decided to build their own fence inside the "turn around" section (in an effort to not have to look at the color of paint I've chose) but now there is not enough room between the two fences for me to finish painting the backside of my fence or do any maintenance on my fence.

In the agreement filed with the Recorder's office it states "Any party/parties responsible for causing specific damage within the easement area shall be solely responsible for its associated maintenance and repairs". Does this mean they can be held liable for the cost to me for repainting the fence with the color of MY choice? And can they legally modify the easement or build a fence on it that would prevent me from having access to MY fence? In the actual P&S agreement, it clearly states that neither can modify any part of the easement with the other party's permission. Keep in mind, this is still a part of my property and I pay taxes on it but I can't deny them access to the easement's use. As a result, however it is my understanding that I must agree to any modifications made to any part of the easement. Any guidance would be greatly appreciated!

Dotty LeMieux said...

Thank you for reading and writing to Land Use News.

First of all, I'm not sure why you care what color the fence on the other said is painted, if faces away from you.

That being said, they cannot generally do anything that interferes with the mintence of the property. I am only licensed in California, so if you truly want to pursue this, you need to get a local land use attorney.

As for changing the terms of the easement, that must be consensual, as part of the property agreement, so if you never signed the changes, I'm not sure how they just stuck it in there. Was this while escrow was pending?

Since they have painted it, I would let them maintain their side, so it doesn't fall into disrepair. Having another fence inside the original one just seems silly.

Good luck and I hope you can resolve this and remain on good terms with your neighbors, if possible.

Kevin said...

I have a public easement on my newly purchased property, I also have a large billboard sign which was granted an easement on top of the public easement granted by a former owner, this is a California Property.
Can a property owner grant an easement to be placed on or within a public easement? I would like to have the sign removed but the company says they have a perpetual easement, but the most disturbing thing is they claim to have the right to control all advertising on the property, the problem is the land has my commercial building, which interferes with my (owners) right to put up advertising signs for my business.

Dotty LeMieux said...

An interesting conundrum, one which probably take further review. If the billboard doesn't interfere with the public easement,it might be allowable, however, it shouldn't interfere with you use of the property. Did you not research this when you purchased the property? If you would like a consultation, I am in San Rafael. Where are you located?

Anonymous said...

Please help. I've lived in my home for a year and half, I'm renting through a reality. I was unaware of what An easement is until pg&e broke my fence and let my Chihuahua out resulting in Me scraping my baby off the highway the next morning. I'm upset and depressed About it all. I got no call from pg&e to let me know they needed in or that my dog got out. I live in Fairfield, ca.

Dotty LeMieux said...

I am very sorry for your loss. That is horrible. Even if there is an easement for PG and E, there is no excuse for breaking down a fence. If the landlord did not provide entry, the landlord may be responsible. Unfortunately, the law does not recognize the loss of a pet the same as the loss of a human, and your compensation would be based on property value only.

Inform the landlord right away, and PG and E as well. They should at least fix the fence. Nothing can make up for the loss of your pet.

Anonymous said...

Hi Dotty,
I'm in California, and am having several issues with easements on my property which are negatively affecting my quality of life--the least complicated of which is:
The upper route to my property passes through several other parcels. I have a deeded easement through all of them to the highway. A couple of years ago my neighbor's caretaker randomly decided to erect a gate on the road through their parcel--of course he put it beyond the spur road to their house, so he does not have to deal with it. Now that the lower route to my property is being blocked by the new landowner (a separate and more complicated issue), I have to use the much longer upper road, and the gate is a real hassle. This is middle-of-nowhere Big Sur, and I definitely do not want to have to deal with it once the (hurricane-force) rains begin.
From the research I did it seems like there is almost a blanket prohibition on gating an easement, but after reading your blog I'm not sure. Please advise.

Anonymous said...

Hi Dotty,
I'm in California, and am having several issues with easements on my property which are negatively affecting my quality of life--the least complicated of which is:
The upper route to my property passes through several other parcels. I have a deeded easement through all of them to the highway. A couple of years ago my neighbor's caretaker randomly decided to erect a gate on the road through their parcel--of course he put it beyond the spur road to their house, so he does not have to deal with it. Now that the lower route to my property is being blocked by the new landowner (a separate and more complicated issue), I have to use the much longer upper road, and the gate is a real hassle. This is middle-of-nowhere Big Sur, and I definitely do not want to have to deal with it once the (hurricane-force) rains begin.
From the research I did it seems like there is almost a blanket prohibition on gating an easement, but after reading your blog I'm not sure. Please advise.

Bill said...

In Riverside County, CA.
I'm currently renting corner property that has an easement for the neighbor (dominant) on the non address side. He has access via the street that has his address. I looks as though the reason for the easement was for access during heavy rains. The neighbor now has a culvert in place and he uses that access for his own use while his wife uses the easement. Would that fall under changed condidions as a reason for rescinding the easement?
Also, the neighbor has stated he want's to place a fence and gate along the easement. That would remove the use of that piece of the property for me for anything other than ingress and egress. What is the situation there? Is an estoppel in order? Lastly, what are the ramifications of termination by prescription? I could easily block the neighbors end of the easment to disallow access while still maintaining use for my purposes.
Thank you in advance for your thoughts on these matters.
Bill

Dotty LeMieux said...

To Bill in Big Sur,

The neighbor may put up a gate, assuming he has a good reason for needing it, but he cannot block your access. Is the gate too hard to open? I'm not sure why it's an issue. If you have a deeded access to the lower road, that neighbor can';t block it off either, especially if the upper one is so difficult to access.

I'd need to know more about your specific issue to offer more of an answer. Add what you care to.

Dotty LeMieux said...

Sorry, Laurence in Big Sure, Bill in Riverside,

You would do well to talk with a local land use attorney. There are a lot of issues here and without knowing more, seeing deeds and so forth, it's impossible to answer in this space.

Good luck.

Steve said...

My wife and I purchased a property from her boss. Before the closing she added an easement so she could access her landlocked property through ours.

Fast forward four years. The old boss built a stable and is now using her property for commercial use. The use of the easement went from 3 cars a day to over 20 cars a day traveling through our property.

1. What can we do to slow the cars down and keep our clients safe?

2. The easement does not match the map in the deed. They are using 55' more of our land for a road than the map shows. They also don't stay within the easement as they approach their property. Is this undue burden? They now have a paved access to their property but refuse to use it.

3. The easement says we can put up a locked gate. Does it matter where we put it and can we require them to keep it closed and locked at all times?

Thanks,

Steve

Dotty LeMieux said...

You don't say where you are located. I am only licensed to practice law in California. As a general rule, an easement is for a stated purpose. It sounds as though yours was for ingress and egress. If the property was not a commercial use before, she may be in violation of the easement, known as overburdening.

I don't know the zoning, but you should see if her operation is permitted and when it was permitted. As for the gate, you can't prevent people from entering, so you'd need to supply access.

I think you would need to talk to a local land use attorney to resolve this problem.

Best of luck.

Anonymous said...

I own the easement to our property,
their are three homes surrounding the driveway. The previous owner told one of the landlords who have renters of the homes told them they could use the driveway, but they have their own driveway. Problem is I don't want them skateboarding or riding bikes fearing I might be sued. Can I tell them not to play hard? I have some no skateboarding and riding signs on the fence already.
THank you!
Ann F
OREGON

Dotty LeMieux said...

When you say you own the easement, do you mean you have an easement across your own property to allow the surrounding homeowners access? or do you mean you have an easement to your property over another's property?

I assume this is for ingress and egress, not for skateboarding. Riding bikes in and out would qualify under that rule, but not using it as a play area, probably. Has this occurred and have you asked them not to do it?

Your posting of the area is good, but you should also let the others know that those kinds of activities are not permitted under the terms of their use of the easement. Assuming it is yours.

Anonymous said...

I live in Washington State and My property is the servient tenant, the easement is needed for parcels of property beyond my property, the county recently purchased a parcel located beyond my property and have now decided to make this a public park! This is a minimally improved dirt road (private at that) and it is my believe and the other property owners on this private road that changing the current zoning of R10 (rural one du per 10 acres to Parks and Recreation and opening it to public use is overburdening the easement. Any thoughts?

Dotty LeMieux said...

Thanks for reading Land Use News. As a preliminary, I am only licensed to practice law in California. But the general rule is that the easement may be used for its stated purpose and anything reasonably anticipated, such as increased development if it is for ingress and egress. A public park may very well overburden the easement. How long has this been in the works? How long has the County owned the property? Have they always used the easement for their access?

You and the others may well need to hire a local land use attorney on this one. Pooling your funds can help save costs.

Best of luck with this.

Dotty LeMieux said...

To the person in Big Sur:

There is no blanket prohibition on the gate, so long as it is easily available to you. Is this an issue? Let me know, if so.

Anonymous said...

Hello -

I live in Virginia and have a 50' ingress/egress on one of the borders of my property. I'm "assuming" it's for utilities as the power lines are in that area. Hunters came onto my land with No Trespassing signs posted and have rutted it all up. Do people who are not adjoined to your property have the right to use the ingress/egress area and destroy it? I can't find anything in my paperwork that describes what this 50' is for but I know it starts in the middle of the road and goes into my property. It is private property and in the country. I look forward to anything you can tell me on this situation. People seem to think in this community "it's a right of way, you don't own it".

Norman Halverson said...

Have an issue with mobile home park management, in mounds view Minn. that claims they can lease exclusive parking spots along streets that are deemed public easements by the Municipality and in the mobile home park. The park and streets are "open to the Public. Is this legal?

Dotty LeMieux said...

I am only licensed to practice law in California. It would probably depend on local ordinances or the ccr's for the mobile home community. You could read the local ordinances, call the County or City that governs, and do check the ccr's. You might consult a local land use attorney for a more thorough answer. Good luck.

Jennifer said...

Good Morning!

I am currently buying a home in Oregon. I was just informed there is a sewer easement that runs through about 8ft of my neighbors property. The easement has been in place since 1997 and the builder who purchased this property also shows "sewer easement for 2013" in his name because of how the sewer line had to be run. Property is on a hill and due to gravity it had to be run down the hill, parallel to the neighbors house to the street. My question is that this seems to be an implied easement since it is relative to connecting to the sewer system but what happens if the sewer line gets plugged and the problem is on the neighbors property? More importantly, if the neighbor decides to excavate their property for landscaping and disturbs the line, who is responsible for the cost? there is no maintenance agrmt (the builder never established one). I understand why the easement is there and it would be my easement if i purchase but i'm more concerned about the implications of it if the line is in need or repair due to the neighbor or if the line ruined their property? thankfully that neighbor doesn't have a basement. ;)
thank you so much for the consideration and insight.

Anonymous said...

dotty,

i live in florida. i have a utility easement on my property for the fire hydrant. the fire dep. comes to inspect it annually. i was told to keep the hydrant accessible and to keep the area tidy. i have installed a lovely brick path to the hydrant and it sits in my fire dept approved rose garden. my new neighbor wants to put a street light in. right in the middle of my garden... there is another light not 50 ft away... can she do that? is there any way i can stop this? can she have a pole and light put in on MY property? i would be so grateful for any advice thank you
-sarah

Dotty LeMieux said...

Thanks for reading Land Use News. I am only licensed to practice in the State of California, so you need to check your local ordinances, but from what you tell me, I don't see how your neighbor could a) install a streetlight at all; the City would be responsible for that, or b) have one installed on your private property if the garden is actually part of your property, not an easement for the fire department.

Usually, there is a process to go through to get lights installed. Check with the City and see what it is, and what notice they provide. Neighbors may usually be able to weigh in, but not have the final say. You should be able to attend a meeting, write your comments, etc.

Try the Public Works Department. Your neighbor may just be making noises. Good luck.

affordable fences tampa said...

I like the way you start and then conclude your thoughts. Thanks for this nice information. I really appreciate your work, keep it up.

Anonymous said...

My condo has a large walk way on the water in the back of the complex. It connects 2 city parks and everyone uses it. The condo complex is trying to enforce its cond HOA rules in that area. Are they legaly allowed to do that?

Dotty LeMieux said...

I would have to say "it depends." What are the rules? Does the HOA own it? There may be public access for this walk way as there often in. Should be in the ccr's. Or the public may have gained access over years of use.

The HOA attorney should be able to help with it. You don't say what State you are in, but I am only licensed to practice law in the State of California. Good luck.

Ditchg said...

I own property with a 40ft right of way written into the deed for the property behind us. The people were friends with previous owners and when they put drive in they placed 90% of road well out side of the 40ft right of way defined in the deed and shown on the survey plot plan. I am putting a pasture in and the people want me to stay 20 ft from the drive when in some places the drive is 40-60 feet out side of the right of way written into the deed. What are my rights. Do they legally have to stay within the 40ft written into the deed? Can I make them move it back over to where to deed days it should be? and can they make me stay 20ft from the drive. It was put in 12 years ago.

Ditchg said...

I own property with a 40ft right of way written into the deed for the property behind us. The people were friends with previous owners and when they put drive in they placed 90% of road well out side of the 40ft right of way defined in the deed and shown on the survey plot plan. I am putting a pasture in and the people want me to stay 20 ft from the drive when in some places the drive is 40-60 feet out side of the right of way written into the deed. What are my rights. Do they legally have to stay within the 40ft written into the deed? Can I make them move it back over to where to deed days it should be? and can they make me stay 20ft from the drive. It was put in 12 years ago.

Anonymous said...

hello I am in California, I have a question about an easement that runs behind my property. The developer did gift this is Easement to one of my neighbors with the agreement that the neighbor would Divvied all portions to all homeowners that Backup to this easement. But he has only Done some of them and not all of them as I called the developer he was retiring and said he did not want to get involved. I'm wondering if there's anything I can do and what path should I take to see if we can get our portion like some of the other neighbors did?

Dotty LeMieux said...

Thank you for reading Land Use News. If this is an actual deeded easement, if ought to be recorded with the deed and it ought to say for whose benefit it is; all the neighbors, some, just one owner, or perhaps none at all.

You will need the deed, which you can see at your County Recorder's office. Do you need this easement to get in and out of your property? So find out what the deed says,then depending on the circumstances, you may be able to get some help from a local land use attorney. Good luck.

Heather P said...

Hello I have a question, My mom owned a property in Tennessee and I purchased the land behind her back in 2002. I had verbal permission from her to run the city water line through her property to mine and I put a home on it. Since then my mother sold the property to a couple that knew there was a water line running through the property and now they have lost the property to forcloser. I am not sure that the person that ran my water line did a permit and created the easement. When this is sold to a new person can they cut the lines to my property? I have a written document from my mom that she gave me permission to run the lines but it was just a letter of permission with only her signature.

Your advise would be greatly appreciated.

Anonymous said...

MS Lemieux,
We tried to sell our home and found our neighbors bank clouded our title well doing their 2nd morgage on there home .It been clouded for 5 yrs. We have been paying our taxes and payments on this land.Should that bank be responsible in anyway for this era they made?

Dotty LeMieux said...
This comment has been removed by the author.
Dotty LeMieux said...

Thanks for reading Land Use News. You would do well to consult a real estate attorney in your area to advise you on this mater. Good luck.

«Oldest ‹Older   1 – 200 of 232   Newer› Newest»