Easement, access, right of way question

[Gary_in_Indiana]

First, some background. I bought eleven acres off a larger parcel over 2 1/2 years ago. What I bought included a pole barn and the only drive on the property. At the time there were people living in a house my property line gerrymanders around. That house is now abandoned and condemned. The only other buildings by the house are in the same condition though not officially condemned as yet. The house and other buildings are not land locked. They still own roadfront and land from there to their door. The drive runs straight from the road to the house with a turn off to my pole barn. My concern is not with the current, elderly owner but with whomever will end up with it next.

With that background, here is my question. Can I close off or eliminate a portion of that drive from the turn off to my pole building back to my back property line at the house? There would be no driveway access to the house if I did yet there would be a place to put in a drive if anyone so chose at a later date. Does anyone KNOW the law on something like this?

Here's my thinking on it. If I am going to be required to provide the drive, there was no point in buying it. If I had not bought the drive, I'm pretty sure I wouldn't have an easement over it just because I didn't want to put in my own drive so I shouldn't be required to provide one to someone else when they can build a drive of their own if they choose.

I'd really like to KNOW what the law is on this as I have a bulldozer coming to do some other work and could easily have them push all that stone somewhere I can use it then I could replace it with topsoil from the rest of the dozer work.

 

[Mike_Dumond]

Gary, the first question I would ask is, does the deed mention an easement or right of way?? If it does, you'll need to come to an agreement with the present owner about discontinuing it, or you can challenge it in court and have it legally removed. If it's not mentioned in the deed, go for it. It's not like you're going to be causing a hardship for anyone at this time. If it is mentioned in the deed and you go ahead anyway, the court could order you to return it to the way it was, or require you to pay the cost of a new driveway.

Of course, these are generic statements, you may have local ordinances that might change my opinion, but for the most part, this answer should be pretty close.

Another option. Since the buildings are condemmed, maybe you could purchase the property relatively cheap. Removal of the buildings could be as easy as asking the local fire department if they want a structure to have a training burn on.

Right now, I'm locked in battle with our town council about easements. Seems they built a development about 30 years ago, and got an easement from the original property owner for sewer line access. Now, the town is trying to prevent the present owners from using the strip of land for anything except lawn. No storage sheds, no fences, no gardens, just lawn. It effects 10 property owners. The original easement never mentioned any restrictions on use, only that the town has the right of ingress and egress for maintainance. It's going to the Board of Appeals on Monday. Should be interesting. Oh, did I tell you who the chairman of the board is? I could be out of a job on Tuesday. /w3tcompact/icons/laugh.gif

 

[Gary_in_Indiana]

Mike,

Thanks for your reply. There is no mention of an easement by any name or description in the deed. I did allow them to use the drive while they were there as a 'good neighbor' sort of thing but there was no formal agreement.

I'm trying to acquire ownership of the property with the house, etc., right now but don't know if it'll happen. It's in foreclosure and that is being challenged in the court.

As to your easement situation, let me offer what our municipality does regarding easements. The rule here is that property owners know it's an easement and build sheds, plant gardens and put up fences at their own risk. While the utility people try not to disturb things unnecessarily, if they need to get a really big piece of equipment in there and your shed, garden or fence is in the way it could be moved, damaged or destroyed and you have no recourse against the utility, etc.

It seems like a fair system putting the choice of what to do and the consequences of that choice exactly where it belongs. Some people plant gardens there while others avoid it. Some fence up to it and put an extra gate back there so they can go through it to mow. Yet others have fenced across it and left 14' gates (the easement is 14'wide) on either end so the utility merely needs to open them to get through. It's not perfect, but it works here. I think it might work for you, too. Good luck with your meeting. I hope this helps. /w3tcompact/icons/smile.gif

 

[Kelvin]

I don't know the current FACTS concerning your question. Since there aren't very many responses so far, I'll throw what I learned a while back (from a 1970s California Real Estate course that I took a long time ago...)

The way that I remember the training regarding easements is that you can allow someone access across your property, and as long as you block the access for one day out of the year (and document that blockage??), then the party does not have a legal right to demand easement access.

I don't know if this guidance is still current or if it applies in any other states.

Kelvin

 

[riptides]

<blockquote><font size=1>In reply to:</font><hr>

The way that I remember the training regarding easements is that you can allow someone access across your property, and as long as you block the access for one day out of the year (and document that blockage??), then the party does not have a legal right to demand easement access.


<hr></blockquote>



Wow.... ouch.... man I don't think that is right. Maybe in CA
(did you mention that?) they do it that way, but that can't be right. I mean the power companies would have to go to court every day to get their easements back to clear for stuff.

Can you do a double check on that? But you did mention access only, and I may be confusing it with recorded easement. Two different things....
-Thanks
-Mike Z.

 

[RobertN]

Tektronix does that up in Portland Oregon(or at least they used too). They have roads between thier buildings and parking lots that they let the public use.

But, once a year, they shut them down, so that they protect thier property ownership.

 

[Kelvin]

I won't begin to look for my old Real Estate book. If I still have it, it is packed far far away somewhere.

From what I remember, there are two ways that someone can get easement rights across your property:

<font color=red>Voluntarily:</font color=red>

Example: You sell some of your back acreage, and rather than sell the property from the roadway to the property you voluntarily grant permanent easements rights across your property to the back acreage.

<font color=red>Involuntarily</font color=red>

Example #1: The power company needs to come across your property with an underground power cable. They complete all of the necessary legal maneuvers and get easements rights whether you like it or not.

Example #2: You allow "someone" access your property on a regular basis, without interruption. After some point in time (a year or two???) the "someone" can legally demand easement access across your property and there is very little that you, the property owner, can do. That is why the Real Estate course stressed the technique of blocking access the property at least one day per year so that the "someone's" access is interrupted.

I'm not sure what part that you did not understand, but hopefully I stated it more clearly this time.

Kelvin

 

[Wingnut]

looks about right to me (#2) ... here in Michigan. The company I work for has a road (private) between 2 city roads which is open to public use. They close it one day a year to ensure they are not giving away the rights.

 

[dummy]

I don't know the FACTS for Indiana, but I do know for me, I would close any portion of the roadway that I choose, as long as it is not recorded on the deed. In FACT, if it is NOT recorded on the deed and it was a relatively recent purchase, now would be the best time to "make it go away". If you have doubts, on your deed is the name of the civil engineer who signed your deed as being true and valid. CALL them and ask about your roadway, they are the paid experts for this type of problem/question. Also, they are licensed by state/locality to know the local codes. Good luck with growing grass on the old road.

 

[Gary_in_Indiana]

i never thought about asking the surveyor. They're going out to restake the property for me sometime this week so I'll have a reason to talk to them anyhow. Thanks for the tip.