Easement Question

[deltaman]

Guys I have a question for those that know a little about easements. We purchased a property a couple years ago and were shown the entrance to the property a certain way that cuts through on the adjacent landowners road by his cabin also. Come to find out, our legal easement was granted through the back side of the guys property which is basically impassable with any significant rain. The two properties used to be one whole tract and the old access to the property is the easier way and the way they don't want us going in now. Is there much we can do? Thanks

[Odis]

Get an attorney

[Deltaquack]

[SHANE704]

If the road by his cabin has been used for a number of years (7 iirc) then it becomes an easement by prescription. check with an attorney

[gps4]

[SHANE704]

or easement by prior use....im far from an expert on this topic, which is why i said a call to an attorney would be time well spent. All i know is that if you have been using a road for a substancial number of years, then it has probably become the easement

[REBEL DUCK]

Great example of why not to let someone cross your land for easy access

[kb7722]

Rebel Duck is exactly right.

It was your responsibility when purchasing the property to confirm the easement was where you thought it was. You didn't and now you want to make it the adjacent land owners problem instead. Own you to your mistake and live with it.

My parents own a piece of property that now has a public road going down the middle of it because years ago somebody decide to be nice and let some one have easy access to another property.

[Deltaquack]

[REBEL DUCK]

I just went through this on some property. Guy wanted to plant his land in trees but ascs would not pay him unless he had easement across my land. He called being a jack ass and thought we had to give him easement. He was wrong

[Hambone]

Easements can involve tricky legal issues. Some of the advice that has been posted above is not exactly accurate. As many have said, you ought to get a good real estate attorney to look at your situation.

[greenheadgrimreaper]

It's really not that hard, and with a little looking you can always save some legal fee costs by doing your own homework and very possibly find a concrete answer. Of course it goes without saying that at the end of every reply there should be a clause saying, "There are exceptions."

Easements are a type of servitude that can be on/under/ or over (in the air). They're critical to convey properly and have marked properly. And I would never ever buy land where a verbally implied easement from the seller has not been clearly defined and marked and explained; if said easement had any deciding factor on my buying the land (not saying this is you). But I just went through an ordeal, concerning easements, with my brother in law: I was warning him he had better backup the seller's claim of an easement and what kind, stipulations, etc. before he made any further improvements. He did not and, as luck would have it, the owner told him to cease all activity.

So you were told and shown of an easement in one place, over the property of the other landowner, that has now been moved?

In easements, to the non-attorney spokespersons like us, there are usually two estates involved: the dominant and servient. An easement is an INTEREST in the land of another for a certain purpose. The dominant is the positive, servient is negative.

MAKING THE ASSUMPTION with what you have said, you have an interest in traveling over the land of another to get to your own? At face value, it sounds like you are the dominant estate(positively affected from the easement), and the adjacent owner is the servient estate (negatively affected by the easement). It sounds like you have an affirmative easements or appurtenant, simply bc they're most common. This is merely a blind assumption.

I remembered some of this stuff in school with the two names: Mr. John Positive and Mrs. Nancy Negative.

And so, most places, typically, there are 4 types of easements:

1)
Affirmative (positive) Easement: Ex: John Positive has an affirmative easement to use Nancy Negative's property for ingress and egress at "x" location (clearly described/written/marked). John is dominant, Nancy is servient. John benefits,  Nancy suffers.

2)
Negative Easement: John Positive has a negative easement on the estate of Nancy Negative on the grounds that she cannot place any obstructions in John's view of Mecca. John benefits, Nancy suffers (literally if she does not adhere). It is a restriction of otherwise lawful rights for k one to use their property as they please.

3)
Appurtenant Easement: Attached to the dominant estate's land, not owner. If John Positive's family inherited his landlocked estate after  he died, then Nancy Negative could make no claim to bar them from use of the Negative's servient estate because the easement is attached to the land. As long as it has not been terminated, it makes no matter if it has been mentioned in past conveyances- it lives with the land.

4)
Easement in Gross: Attached to a person or entity. If private and non-commercial it usually cannot be conveyed.

Easements can be made by: Reference,  implication, necessity or prescription. No matter how it's made, it will always be filed FOR REFERENCE. If it's not created by reference (conveyance) then you must do so, or if hostile circumstances are in play, the courts will decide.

1)
Reference is basically by deed (in the actual land conveyance deed or a seperate easement deed) or some other legally qualifying document. It can also be created within the reference by reservation and/or exception, AKA "the less and excepts." Best I could ever tell, not being an attorney, the reference is the private party agreement, all else means you're going to court if you desire to file a claim.

2)
Creation by Implication is done in a few ways. Firstly, in terms of reasonable fair use, the grantor implicitly conveys all apparent and obvious easements to the grantee. If the seller parcels out and conveys "the back 40" then it is implied that he is also conveying the new owner of the landlocked parcel an easement to access it. I never really chewed on that much, but I always figured if Nancy was doing her homework then she'd get John to create an easement before she bought it. However if John the seller keeps the "back 40" but doesn't secure an easement then this implied easement law doesn't usuallt apply. He would need to "less and except himself an easement just to be safe. Also implied easements arise from estoppel. Example: John Positive is lied to by Nancy bf buying and she implies that he has a certain easement. Later on he finds out he she lied when she tells him to cease activities. He could have an easement created by implication on the grounds of estoppel: thereby denying Nancy the right to bar him from an interest on her property that he wouldn't ordinarily have had. Her conduct caused it. Sounds kinda like you, who knows? You won't know till you dig a little.

3)
Creation by necessity is created by the necessity ofv the need for the easement for enjoyment of the property. Necessity is the key word.  Considerations from courts on necessity are based on availability (example: ingress and egress) NOT cost or convenience. This is fair. You should not be able to infringe an interest on my private property because you do not want to pay. But if there is no choice, then it is what it is.

4)
Creation by prescription is in a lot of ways like adverse possession. A.P. is a claim on the title, an easement by prescription is a claim on an interest, big difference. Also the laws vary on the statute of limitations on prescription vs a.p. Also, prescriptive easements don't necessarily have to be exclusive like a.p. Adverse Possession has to, at a minimum, clear these hurdles to reach the finish line (none of which I believe would fit your criteria, but they may have been the cause of the easement attached to your land- appurtenant- if it exists):

1)
Open/Notorious: cannot be hidden. Must be in full view where a diligent and reasonable landowner would notice.

2)
Continuous/Actual: must not be sporadic occasional use for the type of use the property is good for. (Although if I shacked up in your beach house whilst meeting all other criteria, painted the cabinets canary-chit yellow and did this for 7+ summers, then my use was not sporadic,  it was full-time for the property type that it is.) Also, if you tell me to leave, the clock stops. However if I come back and meet all of the other criteria, the clock starts back when I arrive- this is only so in terms of prescriptive easements, unless that's no longer the case. It must be for the actual use of the land- what the land is used for is what I must be using it for.

3)
Exclusive: to the owner of the land. This kind of goes back to open/ notorious. I use the land at the exclusion of the owner and I can make a claim to it or myself and a limited # of others- sort of. But the owner is made privy to my exclusive use of the land- or he should be if he were keeping up with his land. However if the owner ever uses his land for any reason,  then youn would not easily be able to claim exclusivity because he is now using the land too and is the owner.

4)
Adverse/non-permissive/hostile: self explanatory.  If you give someone permission then they cannot claim A.P.

This all must be done within the statute of limitations period.


If I were you and I wanted to save some money by saving an attorney some time,  I'd go back and start pulling deeds and documents on all adjacent parcels and yours. You don't always have to go straight to an attorney for this type stuff. You might find your answer yourself. Look and see what kind lf easement it is,  how it was created, the terms of it, etc. If you believe you may have an interest in the neighbor's land, kindly approach him and see if you can work something out. If not and you still think you have a interest, go see an attorney. If nothing else, you saved him all those quarters from printing off paper at the courthouse.

BTW, you also need to look for termination documents. Don't get gung-ho amd think you found the holy grail and then miss over a termination notice.

In any case, in my opinion, it'll be interesting nonetheless. I always found that digging into land records can be pretty interesting providing that you are looking for something. When it gets tedious, is when you are digging and looking for some, thing- anything that stands out. But that's when it's nice to get paid for doing it.

Again, I ain't a lawyer- don't have to be, and neither do you. That's why it's on public record and why we pay taxes: so the records can be maintained. All of what I say may not be completely correct, but in general, this is all fairly accurate info to try and find it yourself.