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.
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270 comments:
«Oldest ‹Older 201 – 270 of 270I live in California. An easement runs through one side of my property. A new neighbor cut down tree branches and widened the 12 foot easement without our permission, he also put in underground power when we declined his request to put in power lines. We came home from work and it was dark so we never realized the trench construction was going on until it was almost completed. He now tells us he is going to pave the road next week. He and his construction crew have driven up and down the road causing clouds of dust to cover out home. They caused damage to my property along the easement as well. Large boulders along the property easement were removed and boulders that were in the easement when the trench was dug were also removed from the area. I am not sure what our options are here now he tells us he will pave the road next Monday. We have no contractual agreements for any of the things he has done or plans to do.
What is the purpose of the easement? I assume for the neighbor to use for ingress and egress? He cannot interfere with you use of the property, and it is not clear if this is what he's doing or just improvements to make access easier.
First make sure what the easement is for, and if he is interfering, by moving boulders and so forth, he would be responsible. I can't say whether the paving itself is outside the parameters of the easement without knowing more. You should talk with a land use attorney in your area.
Best of luck. Please know this cannot be construed as legal advice.
I am buying a property that has a easement for a driveway. The neighbors own the driveway and presented us with a copy of the easement from the original owners in 1950. We are adding a driveway to the property so now we will never use theirs. They say they expect us to maintain their driveway..even though we will never drive on it again.
Are we legally responsible still?
This is not a question so much about an easement but this. I want to start a small boutique winery on my A-1 property in Los Angeles County. Rules state you must have at least two acres and I only have one. However, law also states that a property bordering me can lease me land which in this case would allow me to apply for a license. Question is, what forms and agreements are needed for my next door neighbor to lease me the property needed to complete my dream?
Hi Dott, I had a quick question. I own a 17 acre piece of land-locked property with a 25 foot by 500 foot wide easement used for ingress/egress. The easement language says nothing about utilities. Is this a problem? Will I be able to bring natural gas and electric using that easement if the language doesn't include utilities? Thanks, Mark
Hi, I don't want to be petty, but there is a safty issue here. We have a telephone box just inside our gate originally for our own phones but we use cell and voip so don't use it. There is also another connection box at the top of the drive at the side of the road more or less on my neighbors property. Our drive from the same road down to the gate is an easement for egress/ingress to our property. This land from our gate to the road is owned by the owner that is renting the house nextdoor. Without any warning/permission Windstream came on to our property and hooked up phone/dsl cable for our neighbors then strung the cable over our entrance way. When my daugther was driving out of the gate 'they' told her the cable wouldn't be there very long as they will come and bury it, ie did a trench in our drive to bury phone cable for the renters next door. We have animals and on occasion we lock our gate so should there be a problem with the phone and they needed to check the box they would not be able to get to it since the gate would be locked. Is this connection legal or are they tresspassing and being cheap skates so as not to run cable from the box next to the road down our neighbors drive for our neighbors use?
Hi dotty I'm in need help and advice. So me and my husband bought a house last year and we are young I'm 19 now and he's 22. The person who sold us the house did not provide the original surveying map although we asked him but we didn't think he was lieing to us so we recently surveyed again without knowing he had already surveyed our house before we bought it and now all the pins and measurements are different (less land than whatr he showed us) he did give us a map but it was wrong. He pretty much sold us different measurements (less land) . I feel it wasn't fair because we are so young and we didn't know nothing about surveying and all that and he should have done the right thing as a professional because he builds houses and sells them. It was sold by owner. And now turns out that our driveway is not ours because the driveway is in my neighbors land which that house is the man who sold us our house as well. So he owns black th houses and now turns out that the easement was written wrong because the easement is in my own land and its suppose to be on his other house land and now he does not want to fix it what should I do?
Hi dotty I have a question.. I'm having problems with my neighbor about boundary/property lines so she decided to take out my map were I have my surveying info can she do that without my consent or is it illegal. Because I saw her have my map in her hands.
To Anonymous no. 1 (19 and 22 year old homeowners):
If you believe the person who sold you the house was trying to pull a fast one, that is deceiving you as to the property lines, which were not obvious, and that there is a some kind of easement or lack thereof which should have been disclosed, you may be able to have the sale voided, get money back, or other remedy. I would suggest that you seek a real estate attorney where you live to help you out.
Best of luck.
To the 19 and 22 yr. old homeowners, if you believe you were deliberately deceived about the size or location of the property and the driveway, and this was not readily discoverable by looking at the deed, or the title report, you may have a case against the owner. Your best bet is to contact a real estate lawyer in your area.
Best of luck.
Neighbors have blocked a driveway used by our business for customers that has been used by our motel for over three decades. This guy is being an extreme piece of work, putting out boulders, spike strips, rope, and a hundred signs. Please help, what can we do? He meets us with weapons when we get close to the property cursing in front of our children! He is a complete psycho and I want to do something about it before we are out of time!
I hope you have called the police when he is threatening you with weapons. You don't say what state you live in and I am only licensed to practice in California. You also don't say if the driveway is yours, you have an easement over it, or how it is you have used it. Is it the only way to access your motel?
If so, you may have acquired a prescriptive easement. You will need to consult with a local attorney. Take your deed and plot maps and any surveys with you when you do so.
Best of luck.
Hi Dotty, my husband and I own 19 acres of landlocked property in iowa. we have an ingress/egress easement from the 1960s. our neighbor who owns the easement also uses it daily. who is legally responsible for maintenance and repairs and since we are landlocked, what do the courts say about getting utilities added to this 1960s document for ingress/egress easement since we bought this property with intentions of building a single family home on it. Thank you.
Hello, I own a dock in Maine that has an agreement that allows another party and their children to use it "during their lifetimes." These parties are now deceased but the widow of one of the children claims use rights. She is not named in the agreement. Can she inherit the right to use the dock if the agreement specifies use rights during the named parties lifetimes?
Hello, and thank you for reading Land Use News. It depends on how, and possible when, the agreement was written. If spouses are covered is hard to say from here. It may also depend on whether Maine is a community property state, and whether the agreement is separate property. I would see a land use lawyer in your neck of the woods. Best of luck.
Hi Dotty,
I live in Novato, CA and one of our neighbors a few houses down the street has a broken drainage pipe on their land that is part of a drainage easement that runs down from the top of the street down through their property to the end of the street. They are asking all the neighbors that have part of the overall easement to split the cost of fixing the pipe on their land as they are saying it is part of the "mutual maintenance" of the easement. Do they have any legal right for this? I would assume mutual maintenance would be taking care of the easement portion that is just on my land. Can you give me any insight to this? Thanks for your help.
Hi Dotty,
I am Massachusetts and own a parcel of land which is "landlocked". My only access to this parcel is a 50' easement which reads as "... is for the purpose of ingress and egress by foot and motor vehicle .... for utility service... shall be used for all purposes for which driveway and utility easements are used... it is expressly understood and agreed that said easement shall be for the sole and exclusive benefit of said lot and shall be appurtenant to said lot"
My question is, would I be able to place a road on this easement to gain access to my property?
Hi Neil,
Thanks for reading Land Use News. I am only licensed to practice in California, but it is generally the rule for easements for ingress and egress that you may use the easement for the purpose for which it's designed. Since it's for vehicle use, putting a road on it would make sense. But do check with local law first, to see if there are any restrictions,and be sure you discuss it with the owner of the front lot, so that you don't run into problems down the road.
Good luck.
I own a 5 acre property in California with a rec. cabin on it in San Bernardino County. The ownership of the property was originally granted by a patent from the USA in 1960 to the new owner, part of the "small tract act" of 1938. The patent allows for a right of way for road and public utilities, as does all of the other small 2.5 and 5 AC adjacent lots to us , as they were granted to owners in the 1950s and 1960s by the same "small tract act".
Our current access is a road that partly crosses a large 80 acre lot owned by a developer, they purchased said lot in 2003. This lot was acquired by a homesteading patent in 1918, and does not discuss the property being subject to a ROW. Their SE corner of the lot touches the NW corner of our lot, "kitty corner".
That developer is now in the planning stages of putting in a large housing development, and their plans will cut off our road to access our cabin.
We recently purchased our property, and were not aware of the developer's plans till this past week, talking to another neighbor.
What do you suggest we do? Talk to the developer? Ask our adjacent 5 acre property owner to the north for an ingress egress easement? (The road we take currently is on his northern edge, but then passes into the 80 acre lot, then turns south).
Any suggestions would be appreciated.
Dotty:
My neighbor's home is behind our home. He has an easement on the side of our property that functionally serves as a driveway to his home. He has recently become very disgruntled for personal reasons. After 9 years of peaceful existence he is predicting a slip and fall, related to our Utah icy winters, and related damages. He demands that I maintain the easement, including snow removal and de-icing. I am under the impression that my only legal obligation is to not block the easement and continue to give him access. Is this correct?
Jimmy - Salt Lake City, Utah
If the easement is just for his use, he should be the one to maintain it. If you both use it, you should jointly maintain it. However, you must not do anything to hinder his use of it. So make sure the ice and snow is not being pushed onto the easement from your property by any activities you are conducting.
I must add that I am not licensed to practice in Utah, so you may need to consult Utah law for any nuances.
I am curious about placement of pins on an easement which is also a dirt road. There is a 100' easement between my property and the two properties on the other side. The pins are on my side of the easement because there is a longer property line (which makes sense because otherwise they would get scraped away during road maintenance). The space from the pins to the across the street fence is 100' - so it would seem correct. Someone said that I should put my fence another 100' back from the pins (which would make a total of 200') I think they way it is setup is correct. This is in
arizona.
Not sure what you mean by "pins." Surveyor markers? So I can't tell what you are trying to do with your fence. Do you want to establish a larger easement?
Please try again being more specific; or since you are in Arizona, please see a local land use attorney.
Good luck.
We subdivided our property to family. I got an acre. They got .65 acre. After the property was divided (out of grace because they were family and wanted toput a house on my property for themselves) their piece was agreed upon to run downtothe lake on my property. They signed a paper for all this and I signed too. The plan agreed uponwas 34 ft of lake frontage. Then after their housewas built we all cut out a place where we could lay our kyaks when they were out of water. The neighbor came over and said that this was 10ft onhis property, now my family think they can just take over 10 ft into my property which would then give them my doc. I said no i have xx amt in the agreement they signed that with me and i am not giving up more of my acre just to fix what their surveyor did wrong. Who is right.
It's impossible to say "who is right" without knowing more. Do you have your own survey? How do you know the neighbor is correct?
What does your agreement with your family say? Did an attorney draw it up? Also I am only licensed to practice law in the State of California. If you live in another state, or wherever you are, you need to contact an attorney in your area, familiar with land use laws. Best of luck.
We live in Georgia and purchased a home on 5 acres this past March. The previous owner walked the property lines with us, and pointed out that there was an easement on the south part of the property for a proposed road alteration. A month ago we came home and saw that our property along the road that runs in front of our house was marked 25 ft. into our property line along the whole length. This is NOT the portion of the road that was pointed out by the previous owner. It encroaches into 1/2 of our front wooded 'yard'. We did not have a survey done of our property when we closed, but we did have a title company close (apparently this is the custom in Georgia). Hubby went to development office and apparently the previous older sold the state this 25 ft. easement. We were not aware of this, and would not have purchased the property if we'd been aware of this fact. If the state widens this road, we'll have traffic practically in our front yard! What to do?
To Anonymous in Georgia,
You may have a cause of action against the previous owner and the realtor. It should have been disclosed. It also should have been found by your Title company. Someone goofed and/or lied to you. Check with a local attorney to find out your rights. Don't try to do it alone.
Dear Dotty,
I live in Washington and have a question on ingress/egress easements. I am buying a parcel that has a 20' egress/ingress and utilities easement burdening the adjacent property. It was created in 1985. it has been used in the past 10 years intermittantly by the owner walking across it. He has never driven a vehicle across it. The servient estate has created a fence and gate across it, in addition they have created a dining patio in the middle of it for their customers. They build a shed on it and installed an underground propane tank. They are now claiming adverse possession for the shed, tank, and patio (they installed in 2006). Their attorney claims it was likely to not be discoverable, however I see the easement on their title.
Can you extinguish an easement as such for a vacant lot not yet built upon? She is demanding I cease use of the easement after a set period of allowing me to use it next year.
I live in lafayette indiana and I have a easement next to my house for power lines and sewers. Can I put in a gravel drive on the easement that goes from the manholes to the street legally?
When you say an easement next to your house, I assume you mean it is on your property and is an easement for the power and sewer companies to use.
Generally, you can't do anything that interferes with the use of the easement. If it's there for access to the sewer, and your drive impedes the access, then the answer is no. If not,you may be able to use it, but look at your deed and know the local law. I'm only licensed in the state of California, so cannot advise you on Indiana law.
I live in Worcester county ,
Maryland
My mom purchased a 1 acre and we cleared the lot without knowing we needed permits. There was an existing farm house, but it was falling down and we had the local fire dept. burn it. This property is in non critical area and is rated ag 1 .well we went to the town to get permits to build another home. Enviromental got involved with forestry. So forestry said we cut to many trees out that were only allowed to clear 20,000 ft. I looked on google earth back to 1989 and it showed the 1 acre lot cleared with the home. The people died in 1990 and the home was left to rot and not to be maintain by no one. so my mom bought it in 2011. So the problem we are having is that envirmental and forestry will only go back to 2004 with there gps which shows the property grown in.with weeds and trees. So they had my mom sign a agreement to give up 2 percent of the property to a no mow zone and made it a easement. I have looked at the laws and cant find anything that supports this. I think they are taking it out on me and my mom cause we did not get any permits. Can they do this and what can we do? This property was once livable .
Hi, Ms. LeMieux,
I consulted 3 attorneys in MI, but am still unclear. We own an easement in our neighbor's backyard. They literally can't use it since it's on the wrong side of their house (except when they walk). We have landscaping that for well over 20 years has been on our easement (their property). A judge ruled 20 years ago that we are responsible to maintain the entire easement. Our neighbors want to remove the landscaping (our trees and shrubs on their land, our easement). If this were in CA, could they just clear things out, right up to our house, as long as we can still utilize the easement?
You don't say what the easement was for; how does your judgment read? If it is for the landscaping, no they can't clear it out. They shouldn't do it anyway, as the vegetation is yours and has value. unless it has somehow damaged their property. What type of landscaping is it?
If it's not for landscaping, and say for ingress and egress, you are not using it as intended. Generally an easement cannot interfere with the right of the landowner to use it; nor can they interfere with your right to use it for its intended use.
Hi Ms. Le Mieux. Great blog. I'm confused about a few things though:
>In some posts I think you're saying that a landowner putting a gate across a road would not interfere with the easement holder's rights as long as they're given a key or code; yet in another post you seem to suggest that speed bumps would be an unreasonable restriction of the easement holder's access. Can you please clarify?
>From other posts, I get the impression that a landowner putting a fence or trees within the easement is generally acceptable as long as the easement holder can still come and go. Am I interpreting that correctly? (For example, if a 15ft-wide road is present within a 20 ft easement, is the easement holder within their right to demand removal of a fence or trees within the remaining 5ft margin if the road is easily passable as is?).
>Finally, in California, for an easement described only as "for general road and utility purposes" (i.e., no other agreement), would an easement holder be required to ask permission of the landowner before:
1. Trimming or removing vegetation, trees
2. Adding gravel to an existing gravel road, asphalt to a paved road, etc.
3. Paving over an existing gravel or dirt road
Thanks for your help!
Hi Dotty,
I'm hoping you can steer me in the right direction. My uncle uses my driveway to get to his house. A cell phone company has started to build a tower on his land, and they too have been using my driveway. The manager of the project, told me that they didnt need permission from me to use the driveway, they got permission from my uncle. Is this legal? My uncle has a right of way for ingress and egress through a warranty deed (there is no actual easement). HELP!
Hello, You don't say what state you're in, and I am only licensed to practice law in California, so you may need to consult a local land use attorney. The general rule for an easement for ingress and egress is that it can be used for its intended purpose and anything reasonably foreseeable, such as increased development in a residential area. Everything is pretty case by case basis. I'm not sure what you mean by there is no easement. Because that is what you seem to be describing.
A local land use attorney can advise you of the rules where you are and what options you have open to you.
Best of luck.
Hi -- I recently acquired a property in California and my idea of common sense (or common courtesy) is apparently out of synch with the neighbors'. Several neighboring properties have an easement across the land "for general road and utility purposes" (no other agreement about maintenance or other use). There is a one-lane drive through a winding easement corridor. The issues that are emerging are:
>The neighbors have been accustomed to lopping off branches that extend over the easement when they feel they need trimming. Unfortunately, I don't always agree with their interpretation of 'need,' and I haven't been impressed with their handiwork (pruning in a way that's unhealthy for the trees, piles of branches left on the ground). I am used to people asking permission before trimming anything, and if I have to I'll trim it myself. Am I not within my rights in California to demand they get permission to touch anything on the property?
>Some portions of the drive are paved and others are gravel. The neighbors are openly dreaming of paving the drive as soon as they have the money, and in the meantime some have been bringing in gravel to level out the gravel sections. In my home state, they would not be able to do any of this without my permission -- isn't this also the case in California? It's hard to see how they could change the land (and hence the character and/or taxable value) without my agreement.
>There are several places where this one-lane road turns sharply, impairing visibility. Nevertheless, neighbors regularly speed along it despite my asking them politely to slow down. If they were to have an accident would they be in a strong position in a lawsuit? Any problem with putting in speed bumps?
>The existing road is attractive to sight-seers whom I would like to keep out. Can I put in a gate and give a code to the neighbors without infringing their rights?
>The granted easement is 20 ft wide, while the road itself varies from 10 to 15 ft wide. There are various trees and fencing that have been within the 20-ft easement corridor for years but which don't impinge on the road. Can the neighbors insist that these trees and fencing be removed? If not, can I add other plants inside that 20ft space if it doesn't affect the existing road or their ability to come and go?
Thanks for any direction you have!
My wife & I have owned a parcel of land in Lake County Calif for 37 years. I always understood our easement was prescriptive as I knew originally we did not have a deeded access. The only access road we and others who own property around here can use, is a private deeded road formed when a portion of the land around us was sub divided (1970). There is no other access al all. Our 17 acres and a few other land owners around us here are as we are,. no deeded easement, only prescriptive. There has been a locked gate on this access road to keep hunters and off roaders out since the 80’s. The new owner of the gated property, which has the deeded 40 easement right through it, has begun trying to buy up land back behind his gate. He has begun threatening people with no access and locking owners out and generally making as much trouble as he can, to get owners to sell to him extremely cheap. He has succeeded once with a nearby owner who was deathly ill. He is now refusing my entrance to our land but a neighbor ( who has a deeded access) who adjoins our land has given me written permission to cross his land whenever we need to. This new “gated“ owner has sent me a lawyer letter a year or two ago stating I do not have legal access etc. I’ve ignored the letter and the lawsuit threat made by his advocate. I told this problem neighbor of mine to please, serve me with a lawsuit so I can obtain quiet tittle to my property on his dime. He has avoided me ever since. I don’t think he really wants to get involved in a lawsuit. I continue to access my land even though the gate is locked etc. The neighbors give me the combo to get in and we have and continue to enjoy access. He has threatened to call the police and have me arrested for trespass but has not done so.
The problem is I want to list our place for sale but this problem neighbor has told our other neighbors he will block my realtors access and actually has done this before with a Realtor and even threatened another realtor with possible shooting practice ricochets! He has huge Canary Island dogs who will rush your vehicle etc. I threatened to call the animal control on him which only seemed to piss him off worse.
When this first happened two years ago I contacted my tittle insurance policy holder and after they researched the easement issue, they paid off the policy. This was a 1977 value but they bought their policy back!
Do I even have a chance here? I don’t believe a new owner will get a Tittle company to give any easement assurances of access guarantees with having the policy paid off by the original Tittle company.
I don’t really understand how to rectify this whole situation. I am beginning months of Radiation treatments and would like to get this out of the way before I’m done,..in more ways then one,..sigh.
Dotty LeMieux, I wish I had found this blog two years ago. Excellent information on here. Thank you in advance for taking the time to post and monitor this blog.
My wife & I have owned a parcel of land in Lake County Calif for 37 years. I always understood our easement was prescriptive as I knew originally we did not have a deeded access. The only access road we and others who own property around here can use, is a private deeded road formed when a portion of the land around us was sub divided (1970). There is no other access at all. Our 17 acres and a few other land owners around us here, are as we are,. no deeded easement, only prescriptive. There has been a locked gate on this access road to keep hunters and off roaders out since the 80’s. The new owner of the "gated" property, which has the deeded 40 easement right through it, has begun trying to buy up land back behind this gate. He has begun threatening people with no access and locking owners out and generally making as much trouble as he can, to get owners to sell to him extremely cheap. He has succeeded once with a nearby owner who was deathly ill. He is now refusing my entrance to our land but a neighbor ( who has a deeded access) who adjoins our land has given me written permission to cross his land whenever we need to. This new “gated“ owner has sent me a lawyer letter a year or two ago stating I do not have legal access etc. I’ve ignored the letter and the lawsuit threat made by his advocate. I told this problem neighbor of mine to please, serve me with a lawsuit so I can obtain quiet tittle to my property on his dime. He has avoided me ever since. I don’t think he really wants to get involved in a lawsuit. I continue to access my land even though the gate is locked etc. The neighbors give me the combo to get in and we have and continue to enjoy access. He has threatened to call the police and have me arrested for trespass but has not done so.
The problem is I want to list our place for sale but this problem neighbor has told our other neighbors he will block my realtors access and actually has done this before with a Realtor and even threatened another realtor with possible shooting practice ricochets! He has huge Canary Island dogs who will rush your vehicle etc. I threatened to call the animal control on him which only seemed to piss him off worse.
When this first happened two years ago I contacted my tittle insurance policy holder and after they researched the easement issue, they paid off the policy. This was bought back at a 1977 value but they bought their policy back!
Do I even have a chance here? I don’t believe a new owner will get a Tittle company to give any easement assurances of access guarantees with having had the original policy paid off by the original Tittle company.
I don’t really understand how to rectify this whole situation. I am beginning months of Radiation treatments and would like to get this out of the way before I’m done,..in more ways then one,..sigh.
Tim,
Not sure what happened with your Title insurance Company. That sounds strange. If you've acquired easement by prescription, that would stand and have nothing to do with your title insurance, that I can think of, you acquire it though use. You need to show continuous use, hostile and open, without permission for the required time, in California 5 years.
If there is another access you have, and it is equally accessible and easy to use,, and there is some good reason why the first owner has denied access, the courts may weight those two circumstances.
You could bring a quiet title action yourself, or just have the other neighbor sell, or deed you the new easement, or have him give you a license that he agrees will run with the land, so you can sell it with the easement in place.
otherwise, you will have to go to court against neighbor no. 1 to quiet title and have the easement declared valid when you sell it, or at least disclose there is an ongoing dispute with this nasty neighbor and the new owner will inherit the problem from you. It might be problematic to sell under those conditions. I would suggest seeing a local land use attorney for advice.
Good luck.
i have a 10-foot easement running down the side of my property in los angeles. i am considering tearing down my house and building a new one. the side yard easement in my housing zone is 5 feet. can i reasonably anticipate that i can build right up to the edge of the easement as i will still be 10 feet from the side edge of the lot, or is an additional setback required from the easement? of course i will eventually confirm with the city. thanks
Hello, and thank for reading Land Use News! You'd do well to check with the City first. It may depend on several factors, ordinances, what the easement is sued for, will your building interfere at all with its use?
Start with the City and then see if there are variances you can apply for it need be.
Good luck!
Dont think this posted.
I have an easement behind my house that runs from on major street to what ia becoming another due to development.
The developer has been required to upgrade the easment but the water company that has pipes there wont allowing grading. They are placing a walkway along it but in order to make it ADA compliant are extending into the park that I live along side. The walkway is 10 feet from my property line and 30 feom my house. The entire side of my backyard and house, which I have huge glass windows are exposed to the park. Currently I have a chain link fence which is less than 5 feet high. I am fearful of the safety and obvious privacy issues. Any suggestion?
I assume the easement is for ingress and egress? Or is it for utilities? If it doesn't hamper what it is intended for you probably don't have many options other than a screen of some sort, hedge or solid fence. Most jurisdictions have a height limit on fences, 6 feet being he most common. See what yours and what you need, if anything, for a variance to suit your needs. Good luck.
Easement ia for utilities but was agreed to be upgraded for a walking trail. The park connecta to it ans is where my privacy/safety issue is as the walkway is next to my home. I live in Orange County Ca. Ia there any expectation of privacy? I have to lose my privavcy as it is aet to be along the entire line of my house with sight into my backyard and pool. The only other option is to, at my expense, (11,000) put up a wall and lose my entire view of the park and valley down below
If the easement is actually on the County (or town's) property, and so is the Park, I'm not sure what you can do about it, except maybe try negotiating with them as part of the process for development of it. Is it a known high-crime area? There may be nuisance issues, for instance, noise, but without knowing more, I can't really help you. You might consult with a local Orange County land use/municipal law attorney.
Hi. We bought property in Oregon and are ready to build. There is an access trail to a larger trail system on our property that does not belong there. We were told that it would be moved, but it wasn't. Our lot is less than 1/4 acre and a narrow 87 foot of frontage. Between the house and the driveway, we don't have room for a trail. The man who by his own admission built the trail is looking at making us keep it there by way of a prescriptive easement. By our reckoning it has been there for 8 or 9 years. By his, 12 or 13. If we have to have it there, it is the only logical place to put a driveway. Will people be walking up the drive? Is that legal? Or do we have no driveway? We are not allowed to park on the street in this HOA. Can you offer any insight? Thanks...
Hello Dotty,. Thank you for this web site and your time. I read through a lot of your blog, great service lady!
I have I think, an easement question: I own 80 acres in San Diego County Calif. A former neighbor, 10 years ago, expanded his horse corral and fence line onto my land without my permission. At the time this neighbor was granting me an easement through his land for power and I did not want to mess that up. I had given him verbal permission to take some dirt he needed from this area but he moved the fence and corral 30 feet onto my property. I thought it best to just give him verbal permission and I did to avoid any problems with him. Later he ended up being a stalking problem, harassing my wife and others on the road. He moved away a year later and the new owners moved in and I brought the fence line and corral problem up to them right away. I did not want to mess the sale up to these new neighbors so I gave them verbal permission also.
I have recently been diagnosed with cancer and I want to sell my place now. The realtor suggested I either get the neighbor that owns the property now, to either move the corral and fence line back onto their property or give them written permission to continue to use it.
#1 question: is I need a simple agreement for them to continue to use my land but don’t know how to write one nor where to find one. I’m nearly broke and can not afford an attorney.
#2nd question: is what are my chances of repossessing this part of my land in case the current neighbor won’t agree or sign the written one I propose?
I’ve lived here for 40 years and I have always tried to get along but I can se my reticence to confront a problem at the time has now come back to haunt me. What Dotty would you suggest please?
Thank you in advance.
Tim
I just bought my home in dec. It was built in 2001 and it seems my neighbor cant slow down for my 2 year old my back porch is about 20 feet from his driveway and has 50ft easement,I think my well and shead is built on his easement also from what the plat show its not my land the easement is on so what is going to happen if he tell me to move my things off is Land....do i have any rights HELP
You do not say where you live. You should, however consult a lawyer in your area. No one has the right to endanger a child, no matter whose land he is one. As for the easement, you need. To know all the relevant facts, property lines, time periods, etc. so consult a land use lawyer right away. Good luck.
I bought a new house in a 55+ subdivision. They have a HOA and CC& Rs. I am in Oregon but getting no help here. At closing, I read the CC& Rs and signed them. A month after moving in the HOA told me the new CC& Rs give my 4 of land on one side up to the my wall. I still pay taxes and insurance and assume all risk and any damages. The prargraph states "the neighbor has the right to use the land as if the own it"
They insist it is legal and are coercing and harassing me even the most of the subdivision doesn't follow the same CC& R rule. In fact, every house that does follow the rule is compensated with an easement on the other side of their house. I don't have a house on the other side so I am out the the land.
Is this legal for them to do this? Is there a possibility of forcing the builder to buy the home from me and pay for the upgrades I have made? Can I simply keep my own land?
Thank you very much.
Hello North Dweller and thank you for reading Land Use News. I am not licensed to practice law in Oregon and would recommend that you talk with a local land use lawyer who is familiar with HOA's and the laws governing the.
Best of luck to you.
My mother has an easement over a neighbors property for ingress and egress to her house as long as the property belongs to her. We just built a road on her property to her house, however a flash flood washed it out before it could be completely finished. Although we had been able to use it a few weeks prior to this, now due to heavy rains to use it would worse its condition and with bad weather upon us we are not sure when it will be fixed. So we resorted to using the easement again. But, the owner now says we must contact him each time someone uses it and get his permission for use of it. Did the new driveway extinguish her right to the easement?
Probably not, but please check with a land use lawyer in your area. Good luck.
Hello
I have some land which adjoints a neighbor's building which has next to it an emergency easement & maintenance easement (which is of a specified size).
I have a problem with the neighbor's and their dog, whom they intentionally bring onto our land for it to poop and had a couple of questions relating to this:
1) If I build a small fence on our land, but that crossed the easement, then if the fence is low enough to stop the dog gaining access, but not tall enough to stop people having access (i.e. suppose the fence is about 3 or 3 feet high and has a gate which is unlocked) then is that considered blocking the easement?
Note its not an ingress/egress easement as it is at the back of the building where there are no doors. Also as the fence would be low it would not block emergency nor maintenance access, it wouldn't block a human, only a dog.
2) In Washington state it is unlawful for a pet owner to permit an animal to be on another person's property (SMC 9.25.084 A
It is unlawful for the owner to:
A. Permit any animal, except cats and pigeons, to be at large or trespass upon the property of another.).
If the neighbor takes their dog onto the emergency access/maintenance easement would that still be considered tresspass, as the land is still ours and they are not using the easement for emergency/maintenance purposes?
Generally you can put up a fence that allows access, like a gate; if it's just for the utilities, maybe you can lock it and give them a key. You'd have to check with your local ordinances and maybe the utility company. The neighbor should not be bringing his dog onto your property to poop. Bad neighbor. Write him a letter and cite the ordinance. But this is just my common sense reasoning, as I am not licensed to practice law in your state. If things escalate you might want to talk to a local land use lawyer.
Our county in Minnesota is widening our road to which they have 50 foot easement. I thought it was 33 when we bought the property. The county is only offering a 160.00 over easement land use for them to go over this line and temp use and mess up our property for 4 months. Do I have to accept this or what recourse do I have. Thank you
HELP!! I am being sued for not granting a sewer easement for a private developer that is going to build a wemons center and hotel. The city would also like this easement so they can shut down the sewer pump station currently in use. I had a meeting with the city and private party and told them I would sign if: 1. They clean the creek that runs along my property that this property and other new construction property drains into so my house does not flood and 2. Thatthey perform a hydrualic study that includes my land and my neighbors so I could seek representation if their calculation were not correct. My land has issues with erosion and water encroachment. The lawyer states that the city has done their part fully and i have only partially fullfiled my end. What they are referring to is that the City call TXDOT out and had them clean the culverts at the road but no work has been done in the actual creek that runs along my property. They are stating I committed fraud. A few weeks ago the private builder aproached my neighbor and said they would pay us for our easements. So I stated a figure I would like taht would help to put a retaining wall in 10000.00. I got a call and the Private party said thats fine but instaed of boring now they are going to trench 20 feet down! I doubled the figure to 20000.00 to help with any and all settling grass erosion control that they might "miss" when they are done and now they are suing me. Can someone explain why I cant have a right to be compensated for the square footage that will be destroyed and not usable 1000 sqft thsi also happens to be where my children play and we enjoy daily walks not to mention its the only way for us to access our home.
HELP!! I am being sued for not granting a sewer easement for a private developer that is going to build a wemons center and hotel. The city would also like this easement so they can shut down the sewer pump station currently in use. I had a meeting with the city and private party and told them I would sign if: 1. They clean the creek that runs along my property that this property and other new construction property drains into so my house does not flood and 2. Thatthey perform a hydrualic study that includes my land and my neighbors so I could seek representation if their calculation were not correct. My land has issues with erosion and water encroachment. The lawyer states that the city has done their part fully and i have only partially fullfiled my end. What they are referring to is that the City call TXDOT out and had them clean the culverts at the road but no work has been done in the actual creek that runs along my property. They are stating I committed fraud. A few weeks ago the private builder aproached my neighbor and said they would pay us for our easements. So I stated a figure I would like taht would help to put a retaining wall in 10000.00. I got a call and the Private party said thats fine but instaed of boring now they are going to trench 20 feet down! I doubled the figure to 20000.00 to help with any and all settling grass erosion control that they might "miss" when they are done and now they are suing me. Can someone explain why I cant have a right to be compensated for the square footage that will be destroyed and not usable 1000 sqft thsi also happens to be where my children play and we enjoy daily walks not to mention its the only way for us to access our home.
We have a property next to a developed neighborhood. We have not yet annexed into the city. Water, Sewer and Gas run right up to our property at to "future" sites where street may be built in the future. There is a private investor that was interested in buying our property to build homes. We signed contracts and when it came time for him to put the first portion of money down, he stated that he needed more time. The
reason he needed more time is that he also is buying the property next to ours...so you have the neighborhood, our property and then the other property going left to right. He stated that he is paying much less for the other property and will probably just let ours go and build on that. Here is the thing, we own all the way to the main highway and he stated that he will just get an easement to run the water and sewer through our property. Is this possible? He will have to annex his portion of the property, while we will still NOT be annexed.
Thank you
Ken
Without knowing more, I could not say. I am only licensed to practice law in California and you should talk to a local land use attorney. If the utility needed the easement through your property, they may have the right to use it, as it may be the only way to get power to the property. They may have an easement. But again, they may not, and this may prevent him from developing the property. Do talk to a local attorney knowledgeable about easements in your area, and the local planing process as well.
However, it sounds as though he is buying your property, so don't know why this is an issue that concerns you if you will no longer own the property. Good luck in any event.
I left the below comments yesterday, but forgot to tell you the location. Northern California. He said he will not buy our property as it is much higher than the other one. He will just build on the other one. In the contract, he was to give us money after a 6 month "discovery" time, at which he said during that time he would be spending in excess of $300,000 for Annexation, permits, mapping and whatnot, so we didn't ask for the money up front. Also it says he has to turn everything over to us if he backs out. To my knowledge, he has not even attempted to do any of what he said he was going to do during those six months. So we basically had it off the market for six months for nothing. I am not sure if the utility company has an easement or not since both properties run along old Hwy 101. Can he force an easement for water and sewer if there either is or isn't a Utility easement?
Thanks again,
Ken
For review:
We have a property next to a developed neighborhood. We have not yet annexed into the city. Water, Sewer and Gas run right up to our property at to "future" sites where street may be built in the future. There is a private investor that was interested in buying our property to build homes. We signed contracts and when it came time for him to put the first portion of money down, he stated that he needed more time. The
reason he needed more time is that he also is buying the property next to ours...so you have the neighborhood, our property and then the other property going left to right. He stated that he is paying much less for the other property and will probably just let ours go and build on that. Here is the thing, we own all the way to the main highway and he stated that he will just get an easement to run the water and sewer through our property. Is this possible? He will have to annex his portion of the property, while we will still NOT be annexed.
Thank you
Ken
Check your deed to see if there's an easement. Could it be for sewer too? What is the zoning? Is he trying to rezone? All these questions need to be answered. Check with planning department on zoning, permits etc. Check with a local land use attorney after having done your own homework. I doubt he can force you to do anything if no easement is existing already.
20-30 years ago... a 10 acre parcel was split into two 5 acres rectangular parcels (approx 170'x1320')... there is a 30ft easement (15ft on each parcel ... going the entire 1320ft side).... we just bought one of the parcels... the other parcel has been developed with a house, fence on the property line blocking their part of the easement... and a horse structure. at what point can/should we request they vacate the easement? we plan to build a dozen rental duplexes on our parcel.
I live in Pennsylvania.
I recently bought a house and have an easement on the property. It is to access property behind my house. There is no physical structure on the property behind me. The people who use it mow the grass and up keep the dirt driveway. Recently they started putting up a fence on the easement the part of the property that I own. Can they do this? If I cannot block their property by putting up a fence, can they put one up themselves on the portion that own?
i have a land issue, there is a unmaintained since the 1960s but open town ship road thats petitioned to close. that is the only why to get into my step land its part of 40 acres of land a 150ft of this road is on me its grew up, oil and gas cleand up the top of this road thats 330ft above me in 2010, a new owner has got this 330ft road land above me that we have used with 4x4 trucks and farm tools a good bit since oil and gas put a main line in on it and a gas tap on us , can they close this i have no other way in unless i build a million$ road that would take over 2000ft from the over side of my land, and would have to shoot and blast rock to even get there the land is a BIG v hollow with creeks we want to but a few campers in it
Is it legal in Tennessee for a seller to grant himself an easement for a property that is not landlocked, burdening the buyer of a separate property, not informing the buyer that he got an easement on said property two hours before the warranty deed was filed in the buyers name and there being no mention at all of the easement on the warranty deed itself?
Not sure what you mean by a seller granting himself an easement. A seller can reserve an easement on the land he is selling. How is this burdening another property? It might depend how he plans to use the easement, if it burdens another. Talk to a local land use attorney. Good luck.
We have an easement that’s a shared driveway with the owner of the property the easement is located on. There is a short stretch at the end to our gate that we use exclusively. This gravel drive has been damaged by extensive construction activity for a new multimillion dollar vacation home. Owner is asking us to share cost of complete redo of the drive equally. We disagree because our portion is fine to use and all damage has been done by owner’s construction activity. Who is responsible for repairs to the drive, and who decides and pays for improving the drive?
Dear Anonymous,
Generally the one damaging the easement must repair it. It may depend on what your original contract said. Who owns the underlying land, you or the other party? Either way, they should not damage your ability to access your driveway. I would consult a real estate lawyer in your area, if you cannot resolve it between you.
Good luck.
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