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Help! I need legal advice re: easements
- Thread starter mdbarb
- Start date
- Views: 150684
The grassy knoll and where he parks are on my property, imediately adjacent to his property.
The problem with the easement is:
It states an easement for ingress and egress upon the existing road 20' in width. The existing road is 10' in width and has provided the required ingress/egress for 13 years.
Case law has shown that an easement will be held to the minimum impact upon the servient tenant (me, the owner) while still satisfing the requirements of the easement(ingress/egress). The existing road has done this.
Beyond that important point, does the statement "upon the existing road" limit it to the existing road?
If he were to widen it to 20' he would have to remove many trees (including endangered Blue Oaks), make subtantial cuts into the hillsideand remove a corner of my barn (I hate when that happens).
Basically, what he bought was not any land, but the right of ingress/egress, which has never been a problem.
And yes it was a HUGE mistake to allow him to stay on my property after I knew where the property line was and the entire reason for me posting this thread was to let others know before getting into such a mess.
The problem with the easement is:
It states an easement for ingress and egress upon the existing road 20' in width. The existing road is 10' in width and has provided the required ingress/egress for 13 years.
Case law has shown that an easement will be held to the minimum impact upon the servient tenant (me, the owner) while still satisfing the requirements of the easement(ingress/egress). The existing road has done this.
Beyond that important point, does the statement "upon the existing road" limit it to the existing road?
If he were to widen it to 20' he would have to remove many trees (including endangered Blue Oaks), make subtantial cuts into the hillsideand remove a corner of my barn (I hate when that happens).
Basically, what he bought was not any land, but the right of ingress/egress, which has never been a problem.
And yes it was a HUGE mistake to allow him to stay on my property after I knew where the property line was and the entire reason for me posting this thread was to let others know before getting into such a mess.
Docsknotinn
Veteran Member
I certainly understand your troubles. You clearly have multiple issues I am just trying to get my mind around the 20' Vs 10' existing road. Mostly just for my own info as I potentially have a similar situation. I take no pleasure in saying that I have more than my fair share of legal battles behind me. What I have found over the years is this. There is always a barrister who will promise you the stars based on case law. Why does it matter if it was 30 days or 30 years if they want to make the road wider ? It seems at least to my feeble mind that there is a express and implied warranty that they would be able to utilize as much of the 20' they wanted any time they want. As long as it is widened on the existing road. Especially if they paid for it. The minimal impact issue seems pretty thin as it is subject to interpretation and their needs. There seems to be a huge empasis on existing. The barn seems like a real problem if it was there before the easement it should have been addressed then and if after , oops. Was the Road surveyed at the time ? Did you sell them the land they own
or just the easement ? Dave
or just the easement ? Dave
MarkV
Super Member
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Dave,
I believe the point is that if the 10' road meets the need of ingress and egress why destroy more of mdbarb's property to make it 20'. If it is to allow for garden space or RV parking that is not ingress or egress. If it is to claim more than the easement was intended for, well I would be in court also. If it is to get mdbarb because they don't like him, I wouldn't let that happen to me. Keep in mind that mdbarb has offered to buy the property or provide a different means of access, at his expense, without any form of compromise even being considered by the neighbors.
Mdbarb, did anything come of the wet lands issues that were being looked into by the authorities?
MarkV
I believe the point is that if the 10' road meets the need of ingress and egress why destroy more of mdbarb's property to make it 20'. If it is to allow for garden space or RV parking that is not ingress or egress. If it is to claim more than the easement was intended for, well I would be in court also. If it is to get mdbarb because they don't like him, I wouldn't let that happen to me. Keep in mind that mdbarb has offered to buy the property or provide a different means of access, at his expense, without any form of compromise even being considered by the neighbors.
Mdbarb, did anything come of the wet lands issues that were being looked into by the authorities?
MarkV
Docsknotinn
Veteran Member
Mark I agre with you, It just seems subject to interpretation as to what "need" is for ingress/egress. What good is 20' of easement if only 10' can be used ? I am just trying to understand the situation better. I did not understand that he had offered to build another road at his expense that is one of the things I was confused about but after you are in court those sort of remedies are not usually very fruitfull. I certainly would not give any extra either or let any one walk on me. But then I would not pay the lawyers to handle this as it does not seem very cost effective. Especially considering you still have one P.Od neighbor in the end. Thats no fun. The thing I am perplexed about is if the easement was sold, but not surveyed how in the world do you get to a point where you have bi-laws on a easement ? speed limits ? speed bumps ????? good grief, no honking ? a barn in the easement ! If this guy wasn't such a jerk and acting like a juvenile he might actually have a case. As unpleasant as that seems It does take two to tango, police calling, following others up the road video cameras etc. /forums/images/graemlins/crazy.gif Dave
<font color="blue"> </font> Mdbarb, did anything come of the wet lands issues that were being looked into by the authorities? <font color="blue"> </font>
Not yet- I havn't heard from the Corps of engineers and actually don't want to rattle that cage just yet. If the neighbor would accept this alternate road then all those issues would be moot as they would abandon the easement road thus have no legal interest in the area.
Not yet- I havn't heard from the Corps of engineers and actually don't want to rattle that cage just yet. If the neighbor would accept this alternate road then all those issues would be moot as they would abandon the easement road thus have no legal interest in the area.
The root of the problem lies in such a poorly written easement. (I didn't sell the easement to them. They bought it from a previous owner when they bought their adjacent property, several years before I bought mine.)
A ten foot road passes immediately adjacent to an old barn that has been there for - I'm guessing- more than 70 yrs.
The easement is "assumed" to be centered upon the roadway (So I'm told by more than one surveyor)
The easemnt also stated "to be surveyed later" which they did not do until litigation.
So the way I see it is they purchased a right to ingress upon the existing road - as it was at the time of purchase and is limited to the "exisitng road". This satisfies the purpose of the easement.
A ten foot road passes immediately adjacent to an old barn that has been there for - I'm guessing- more than 70 yrs.
The easement is "assumed" to be centered upon the roadway (So I'm told by more than one surveyor)
The easemnt also stated "to be surveyed later" which they did not do until litigation.
So the way I see it is they purchased a right to ingress upon the existing road - as it was at the time of purchase and is limited to the "exisitng road". This satisfies the purpose of the easement.
Docsknotinn
Veteran Member
Arghhh ! what a mess. In Michigan we have a Department of enviornmental quality ( DEQ ) that would oversee the gate issue. Is the guy just looney or was there some initial catalyst that started every thing ? Personally I'd take out the speed bumps and raise the speed limit , eh eh eh. Then I'd personally sell the timber on that 20' easement and make it a road 20' wide myself. That would essentially quash his complaint except the grassy knoll. I dont think he has a chance on that one. It is great that you are shareing this though. It will likely help others not make the same mistake. I just would not stoop to his level. Dont follow, dont tape, no extra manure spreading. Just hang the stupid mirror, raise the speed limit remove the bumps and clear the road. It will cost less $ and you'll be a LOT more sane in the end. As some one once said to me....The trouble with rolling around in the mud with the pig is...The pig likes it too much /forums/images/graemlins/grin.gif Best Wishes, Dave
riptides
Super Member
Dave,
Here is a problem that vexes a lot of people.
</font><font color="blue" class="small">( The side road is only 10' with the right to ingress and egress. BUT there is a 33' easement to each landowner. The property line is the middle of the road. If one of my neighbors start cutting to widen the road I fail to see what effective stance I could take.)</font>
The 10' easement is a right of ingress and egress only - passage.
The 33' easement is of what type? Where is it recorded? On your deed? On your neighboors?
A right of passage over "exsisting" roadways is just that. One can maintain that "existing" roadway at someones expense.
In mdbarb's position, it is clear his neighboor failed to take actions to secure or maintain his right of use for anything other than "existing" roadway.
-Mike Z.
I slept at a Holiday Inn last night. /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif
Here is a problem that vexes a lot of people.
</font><font color="blue" class="small">( The side road is only 10' with the right to ingress and egress. BUT there is a 33' easement to each landowner. The property line is the middle of the road. If one of my neighbors start cutting to widen the road I fail to see what effective stance I could take.)</font>
The 10' easement is a right of ingress and egress only - passage.
The 33' easement is of what type? Where is it recorded? On your deed? On your neighboors?
A right of passage over "exsisting" roadways is just that. One can maintain that "existing" roadway at someones expense.
In mdbarb's position, it is clear his neighboor failed to take actions to secure or maintain his right of use for anything other than "existing" roadway.
-Mike Z.
I slept at a Holiday Inn last night. /forums/images/graemlins/grin.gif /forums/images/graemlins/grin.gif