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Neighbor Wars - Real Estate Easements as Landmines

We do a lot of easement litigation. If you own real property, chances are you either hold an easement over someone else’s property, or your property is burdened by someone else’s easement. Because one piece of ground is used by two neighbors, it frequently leads to disputes and even litigation. My staff says this is the most interesting article I’ve written. It may not seem to be an exciting subject, but keep reading!

An easement is a right to use the property of another person. This doesn’t mean that you own his property; it means you own an interest in his property, and he owns an interest in the same piece of ground.

If your property receives the benefit of an easement, you are the “dominant estate”. If your property is subject to an easement owned by somebody else, your property is the “burdened estate” (called a “servient estate” by lawyers).

Now, when you own an easement over someone else’s property, that does not mean that you can use the entire space outlined by the easement. Nor does it mean that you can use it for anything you want. The law says that you have a right to use your easement only to the extent you need it for the purpose of the easement. The property owner (the burdened property) also gets to use the same easement space, so long as their use doesn’t unreasonably interfere with your use. In other words, there is a balancing between what you reasonably need, and what the other property owner reasonably needs. This is what leads to easement disputes between neighbors.

For example, I had a client whose property was burdened by a neighbor’s road easement. The neighbor had an easement to use the road to drive to his home. My client didn’t like the neighbor, the amount of traffic, or the speed at which the neighbor drove across his property. So. What our client did was to install speed bumps across his neighbor’s road. The speed bumps were about ten inches high. This gave our client a good chuckle because when his neighbor drove his RV across the easement, it was like driving a roller coaster. You can imagine what happens to the contents of an RV when it drives over ten inch speed bumps spaced fifteen feet apart.

A lawsuit resulted.

The judge had to weigh the reasonable need of the neighbor to drive across his road, against the reasonable need of our client to slow down traffic to a reasonable speed. It is a balancing device, and one never knows how a judge will feel about a particular issue. In this case, the judge allowed the speed bumps to remain, but ordered them reduced to about five inches in height.

Another very common example is when a property owner wants to put a gate across the road going over his property. His neighbor owns a road easement. In these cases, the judge must balance the need of the neighbor for free access over the easement, against the need of the burdened property to gate it. The gates are usually put there for security purposes, but can often render it difficult for the neighbor to use his road easement.

Usually, we see a judge ruling that a security gate is reasonable (if it is really needed for security), but that the easement owner must have a way to open the gate so he can continue to use his easement. When a property owner wants to put two gates over an easement, there had better be a darned good reason he needs two gates. Rarely are two gates allowed, because that becomes an unreasonable imposition on the easement owner, and an unreasonable use by the property owner who owns the property over which the easement runs.

Sometimes easement uses can be expanded. An easement holder is able to use the easement for its original purpose, but also to expand its use to purposes that could have been envisioned and are reasonable uses in the future. Easements can surprise you, and they are usually important enough to either compromise or litigate. Your use of your real estate or your home can be severely affected by an easement.

Suppose you own a piece of property around Harris Beach, or some other ocean view property with a panorama. When you buy your property, that ocean view is the reason you bought it. It’s gorgeous.

What happens when your neighbor allows the trees to grow up so that you can’t see the ocean? Or, when your neighbor builds a house right in front of you and your view is destroyed by his house. Do you have any rights?

Usually, you don’t. If possible, you should be buying your property with sufficient amounts of surrounding ground so that nobody can interfere with your use and enjoyment. However, if your view is important, you must have a view easement recorded so that no one can build in front of you.

This can be tricky. I had a client whose property was subject to an easement that the neighbor could come onto her property and cut brush. The neighbor thought that the intent was to grant him a view easement. She built her house, and the neighbor objected because his easement was obstructed. This case went to the Court of Appeals.

The Court of Appeals held that an easement to cut brush was just that. The neighbor could go onto the property and cut brush. The neighbor had no view easement, because one was not specified. Our client could build her house just where she wanted, and the neighbor had nothing to say about it.

Whose job it is to maintain an easement is frequently a subject for real estate litigation. It depends on the extent of use by multiple easement holders, or else is controlled by an easement maintenance agreement. In one of our cases, a developer paved the easement. The developer then demanded contributions for the expense of paving from our client. Our client used the road, too.

That went to litigation. The court held that paving a gravel road is not maintenance. It is an improvement, and our client had no obligation to contribute to that improvement.

There is an interesting tweak when an easement holder cuts trees on the easement, so that he can continue to use his road. The easement holder has the right to cut the trees, but the trees belong to the property owner. If the easement holder takes the trees for his own use, then he can be liable to the burdened estate for the value of the trees.

Because property subject to an easement has two “owners”, it is always ripe for a dispute. A court will balance the reasonable need of the easement holder, against the reasonable usage by the owner of the property underlying the easement. A court must also look at whether possible expansion of the easement use is reasonable. These are case by case determinations, and frequently the outcome is unpredictable. Before taking easement use or owner use into your own hands, it is a good idea to consult a lawyer and to try to resolve the dispute in advance of filing a lawsuit. But especially with real estate, the stakes are high and it often leads to litigation. The dominant property owner says to himself, ”I paid for the right to use that easement”. The servient owner says “this is my property, and I should be able to use it as I like”. They are both right.

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