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 09-01-2004, 18:57 Post: 95295
cherymax

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 Neighbor easement problem

For lack of a better place... I'm posting this here. Any help would be greatly appreciated.

I have an easement that runs down the side of my property... it lets the village idiot into his property. There is nothing in my waranty deed or security deed that says anything about this easement. The only record of the easement is on the plat chart.

The guy doesn't/hasn't maintained the easement. The easement has large pot holes, and the drive errodes down a hill leading to his property. I've taken pictures of the easement about every 20/30 days for documentation.

In march, I had a laywer send the neighbor a letter telling him to fix and maintain the easement. Neighbor had the easement graded, but that's all... no rock was added. The drive looked good for about 45 days... then again... it's full of pot holes and is erroding again. I've spoken with idiot neighbor several times... every time it's just excuses why it's not fixed... and it's never his fault.

I'm at my wits end... The lawyer I spoke to said my only recourse is to take him to superior court. It will cost me 2000/3000 dollars to file a complaint with the court. The laywer recommends I sue for damages (how do you quantify damages?) and an injuction.

It would be a lot cheaper for me to fix the drive myself... but's it's the principle of the matter. His driveway (my land) should be repaired by him... not me.

anywho... sorry to ramble on...

Here are my questions?
1. Has anyone sued someone over easement maintenance and recovered/not recovered court cost?

2. If I sue and recover court cost and damages and he doesn't pay... what then? Do I put a lean on his property? Sue him again for non-payment of court cost, etc...?

3. How do you put non-maintenance of easement into $$$ for damages?


Any insight would be great...






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 09-01-2004, 20:40 Post: 95302
ncrunch32



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 Neighbor easement problem

Not sure what a plat chart is? You mean something like a tax map? I have not had an easement problem like the one you describe but I do have experience with land attorneys. You will spend $2,000-3,000 with them and then all of a sudden they tell you - "Oh, well it depends on the judge we get" or something like that.

The best solution is to somehow take matters into your own hands. I don't know how you do that in this case but it requires lots of thought. Maybe you make life uncomfortable for this fellow when the driveway is not maintained. Maybe you fence off some land to hide the mess from you, etc. It seems that if you own the property he has an easement on, you are in a position of control.

You will end up making enemies anyway with this guy. You might as well do a good job of it.






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 09-01-2004, 20:48 Post: 95304
ncrunch32



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 Neighbor easement problem

By the way, as a person who would like an easement into my 35 acres of landlocked property, it is my understanding that an easement on a tax map means nothing if the easement is not documented somewhere on a warranty deed.

You could chain the property off and force the neighbor to go to court to gain access. The neighbor can argue he needs access by way of necessity and would have to go to court to fight you. This way the burden is on him for legal action. He (you) could win or lose depending on the judge and other factors.






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 09-01-2004, 20:52 Post: 95305
Chief



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 Neighbor easement problem

Glad you aren't my neighbor. ;O)

Your first HUGE mistake was having a lawyer send a letter to the guy instead of talking to the guy directly. Now you have alienated him and made an enemy. Good luck getting him to do anything except find new ways to give you a hard time and irritate you.

If there is no easement specified in YOUR warranty deed, then your neighbor has no easement across your land.

My suggestion would be to visit the county court house register of deeds and ask for copies of all the deeds to properties that surround your neighbors land. (they are public information) My guess is that he does have an easement across one of those other pieces of land that ajoins his.

Should that be the case; tell him verbally and now in writting since you now have the lawyer involved that he has no right of way easement across your land and show him where his right of way easement is specified in the deed of one of the other properties joining his. Then put up a fence to block the area he was using and about 20 tons of dirt or rock to block the way would be a good back up.

Bear in mind that if he has no right of way easement anywhere to his property, he cannot be land locked legally. Since you have allowed him to use your property for access to his, you have establish a precident and he most likely will be granted an easement by the court across your land. The fact that you allowed this to happen over a period of time also will bolster his case. Should this indeed end up being the case and he is granted use of the easement on you land and the easement is added to your deed and you continue to keep after him about maintaing the road; he will have substantial grounds to file suit against your for harassing him and his right to access to his land and right of way. The judge is NOT going to like that.

My unsolicited advice would be to hope like hell that there a is right of way easement to his property specified in the warranty deed of another ajoin property to his. Should that NOT be the case; better develop a taste for some humble pie and make friends with the guy and work the issue out with him in an amicable manor.






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 09-01-2004, 21:06 Post: 95310
ncrunch32



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 Neighbor easement problem

My sister had a case where there was a squatter on property she purchased with the intent of developing the land. In the end, she sold the squatter the land he sat on.

Also, like Chief says, if this neighbor has been using your land and there is no other way into his property - the neighbor will most likely be granted a right-of-way since landlocked property is illegal. The only question is whether the right-of-way will include utilities, have permission for vehicles and width or right-of-way.

In my case, I had 10 acres of wood lot with tax map easement from my Dad's farm. What I did was purchase an additional adjacent 25 acres at a town auction. I plan on going to neighbors and offering some land in exchange for right-of-way that can written into a warranty deed someday. We'll see how that works out.






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 09-01-2004, 21:28 Post: 95315
BillMullens

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 Neighbor easement problem

Many times if this kind of issue goes to court, the ruling will be a compromise that is intended to be something that both sides can live with, as opposed to a hard-and-fast interpretation of property laws.

Damages can be quantified by a contractor as long as a specific goal is specified, such as "how much to remove this road and regrade and seed" or "how much to establish a ditchline that will prevent further damage to my land". You may need quotes on materials as well, such as stone, seed, mulch, pipes, etc.

What if he wasn't using the road, though? Would you then fix it yourself? Court should be viewed as a last resort; if you have the means to fix it, and he doesn't, why not just explain to him you can fix it but you won't be doing his road maintenance for free? Maybe you can make a little money maintaining your own land to your satisfaction, and he will probably be saving money compared to having somebody else do it.

Good luck,
Bill






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 09-01-2004, 22:10 Post: 95318
Toller



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 Neighbor easement problem

You really need the expertise of a lawyer experienced in land disputes rather than the idle doodlings of the members of a computer email list.

First of all, the correct answer is dependent on your state. Secondly, some of the comments here are close to right but some are not. For instance, the term prescriptive easement means.....

prescriptive easement
n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.

See the problem? A prescriptive easement won't be recorded with the deed and it exists without the landowners permission after a period set by state law.

I don't know how you found the attorney you spoke to but if s/he is not a specialist in land disputes, contact the County Bar Ass'n (there's one in every county) and ask for names of attorneys who specialize in land disputes.

You asked about setting damages. The question will be what have you had to do to repair damages caused by the failure to maintain his access? That will have to be reduced to dollars.

I really encourage you to secure the services of an experienced attorney in this area as this is exactly the kind of dispute for which we keep them around. There's no sense in trying to solve it yourself by blocking access or similar approaches. Ultimately this could lead to a requirement for a criminal defense attorney.

Eric Johnson (not a lawyer, btw)






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 09-01-2004, 22:18 Post: 95319
Chief



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 Neighbor easement problem

Sure, get those attorneys involved. I bet you can have $10,000.00 tied up in this mess before it is all over with. Maybe even more. ;O) If the other land owner has been using this access and you let him; it is pretty much a forgone conclusion he will have standing in court on this issue. It will be very likely he will prevail unless there is another right of way easement already granted elsewhere.






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 09-01-2004, 22:34 Post: 95322
cherymax

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 Neighbor easement problem

First let me say thanks for all the replies... there have been a few mis-understandings... That's my fault if I had to type out everything that's gone on with this easement it'd take 3 pages... anywho.

ncrunch32
I think it's also called a tax chart.
It's not that I feel uncomfortable dealing with this guy... We've had 200 conversations and none have been hostile. But really, how many times can I ask him to fix the easement. The law states (I have a copy): The servient owner (me) is left to his remedy in the courts by way on injuction and damages. I thought about blocking off the easement... Lawyer said that was a real bad idea. Law says neither one of us can obstruct the others use of the land.

I have put in trees to screen part of the easement, but it really needs fixed. The condition of the easement affects my property value.

I'll look into the easement on tax map not counting for anything... I asked the laywer about that and he "thought" it did... but I'll have him check it out.

Chief,
What's your damn address... I'm movin in Smile)

Yeah chief... my bad... I didn't mention that part... I talked to this guy and the previous owner for 1.5 years. I decided to go the lawyer route so that when/if we went to court I'd have proof (documentation) that I asked him to fix the drive. I also had the laywer check on whose responsibilty it was to maintain the drive... the law says it his.
Again, I'll have the lawyer check out the warranty deed not saying anything about the easement. I'll also check out the register of deeds thing.
No other easement will exist for his property... the guy I bought my house from had originally built the other house for his daughter to live in. He intended for her to use the easement... but he may not have recorded it correctly.
If it turns out that he has no right to use my land belive me... I'll have the 4110 working hard to block it off.
The precident was set by the previous owners... I don't mind that... but I'd rather him have to spend thousands in court than me.
I'll never be friends with this guy... but we don't have any problem "gettin along."

Bill,
Believe me court is the last option... I've been asking nicely for 2 years now and I get only excuses. I thought about doing some maintenance for him but I've had enough problems with this one matter... I'd rather I didn't get anymore entangled with this guy than possible. He's real bad with money too...

I was thinking damages would be different from what it cost to fix the drive?

-----------------------------------------------------------
What I really don't want to happen is: I go to court and not get my court cost refunded... I thought about going to superior court and sittin in on a few trails to see what happens... I guess I need to talk to the superior court clerk and see if they have a schedule of trials. I don't know if they have schedules???






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 09-01-2004, 22:50 Post: 95326
cherymax

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 Neighbor easement problem

Toller,

Yeah... I know the the majority of the people here aren't attorneys... and yes I know it depends on which state your in. I'm in GA and it's 5yrs to claim prescriptive easement here. I'm not really lookin for legal advice. Just real world experience(s). I can weed out the chaff.

I've secured a real estate attorney... it cost 160.00 an hr just to talk to him, and he charges by the minute... which is really nice Smile

I've pretty much come to the conclusion... thru the attorney and legal forums that I cannot block of or hinder his access (if he, indeed, has an easement). I've asked him to fix it till I'm blue in the face... now it's court. I just don't wanna go inot court blindly.






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