Driveway easement question...help?
 

I won't go into the details, and will certainly be contacting an attorney for assistance, but thought I'd run this by the PPOT legal braintrust for any advice or suggestions. My family has just been blindsided by an easement that was filed (though not shown on any deeds) 35 years ago for ingress, egress, and regress on some additional property my grandfather (deceased) purchased bordering our long held family land. Ironically, the driveway easement is to a small (2 acres) lot that had been in our family for over 100 years that my grandfather had essentially "given away" in another land swap one year prior. "They" have been using another driveway for decades and now want to invoke the easement (primarily to access water I believe). My two questions are this: Does not using the easement for 35 years constitute abandonment even though the document filed states it is a permanent easement? Secondly, the easement is explicitly for ingress, egress, and regress...I'm assuming that does not include the right to run a 600 ft water line across our property? I'm pissed as I feel my grandfather was hoodwinked and "no good deed goes unpunished" as they say... :(. Thanks in advance!

No idea but staying tuned. Good luck. Look up adverse possession.

Adverse posession is to claim un-owned property that has been used.

An easement generally does not expire. If the easement is there, they have the right to use that land for the stated purpose, and nothing else.
They can use it for ingress/egress, but they cannot build anything on it unless allowed by the easement.
If it is for access only, that shouldn't allow a water line. Your local laws may be different.

think real estate attorney on this one.

You stated that the mention of the easement is not on the deeds? How about the abstract of the properties? That is were the easement would be spelled out. Typically the easement use is spelled out but, can be construed as an easement for utilities if the lot is landlocked. That doesn't sound like there is that issue since you mentioned they use another driveway. Just because they are allowed to travel that stretch of property to get to theirs does not mean that they can develop on it.

They should legally be able to use the easement FOR THE STATED PURPOSE. So for example; if they are drilling a well on their property, they can use the easement for access if that is what it states/allows. That doesn't not mean they can encroach onto your property (past the easement boundary) to do so. If you would have tried to remove the easement prior to their use, you may have had a leg to stand on. However, since they have begun to (re)use the easement, it would be a much tougher hurdle IMO.

Just my opinion. Review your LOCAL laws/statutes before proceeding, yadda, yadda. As mentioned, it might be a good idea to speak with an RE attorney before doing anything.

kind-of, sort-of. It is to (adversely) possess property that you have used for a certain amount of time, which is already claimed (owned) by another party. Usually there are stipulations that have to be met (2-party knowledge, no corrective actions by the owner, etc.) and the time factor, which is commonly 7-10 years. Of course there are different interpretations/nuances in different areas. In most/all cases though, if adverse possession is granted, the previous owner is not entitled to any compensation.

If an alternate means of access becomes available to the property (which it sounds as though it has) the easement is automatically vacated.

As I recall adverse posetion takes place after 20 years. There are a few things that must occur in order for adverse posession to occur.

1. Use of the property must be open and notorious.

2. If after 364 days the rightful owner sends a letter to the occupying party stating they must leave the property adverse posesion does not occur.

Local laws prevail. That certainly could be the time-frame for North Carolina, and one should be able to find the applicable statute fairly easily online to confirm. ;)

If your use has been open, continuous, and adverse to other claims of ownership, then you might have a hostile easement to use the property (example: driveway to a house or garage), and you may be able to retain use for this purpose.

I believe the OP's situation is the exact opposite though. there is an easement on his property for ingress/egress to the adjacent property. However, that easement has not been used for several years, and an alternative road/driveway has been used by the owners of the adjacent property for several years. The original easement is only now being used (with possible encroachments beyond the easement boundaries).

KC - If I have any of that turned around, please clarify.

IMO (not a lawyer, but in the RE biz) a right of easement usually does not expire. It is non-possessory by definition, and thereby "immune" from adverse possession (by the easement grantee). So, the owners of the adjacent property are likely well within their right to "reignite" that easement. However, they should only be using it for the intended/specified purpose, and do so without encroaching on any other property outside of the easement boundary. Again, local laws prevail and you really need to get a hold of the specific statutes for your area.

a covenant "runs with the land" in perpetuity. A covenant would be recorded on both parcels. An easement can expire for various reasons. A logical starting point would be to get a title report on all affected parcels, and get copies of all underlying documents to title insurance exceptions. These would be the limitations to fee simple absolute title.

If you built a wall, or fence, or planted an orchard across the easement, then you might say that the easement was abandoned. The fact that the other party was using another driveway is an interesting wrinkle. You should request a copy of the easement or pay for a copy from the county recorder.

Absolutely!

There is only one person alive ("she") who knew the easement exists as it was granted by her father (deceased). I'm sure my grandfather didn't know when he purchased the additional property from another party years later. Actually there is another property owner involved too for a portion of the easement, and it's a big surprise to him also. He's a LEO, and the one who has mentioned the possibility that an easments "can" terminate (kind of the opposite of adverse possession) if the easement has not been used for a set amount of time (now 35 years). "Her" two acre lot is indeed technically landlocked, but my grandfather also deeded 1/3 of an adjacent "road frontage" acre to her brother and they have been sharing a common driveway for ingress/egress for decades. I do not believe that road has access to water.

You've pretty much got it except the the easement has NEVER been used at all...but now they "intend" to use it for water access (along with a new driveway). Here is a quote I found online:

Termination of Easements
Unlike other types of interests in land, easements may be terminated by abandonment under certain circumstances. The easement holder's simply stating a desire to abandon the easement is not enough, because words alone are legally insufficient to constitute abandonment. However, if the easement holder intends to abandon an easement and also takes actions which demonstrate that intent, that may be sufficient to show abandonment of the easement, and the easement may be terminated. An action that qualifies as showing "intent to abandon" an easement is an easement holder's non-use of the easement for an extended period of time.

I now have a copy of the easement that was filed in 1977 at the registrar of deeds in that county. After my grandparents passed, "our" estate attys provided property assessments that show none of this, and it only took the registrar's clerk a few minutes to locate the easement doc once I explained the situation.

Thank you all for your comments. I/We're hoping to sit down face-to-face with the other party and resolve this amicably as both families have lived in the community for 100+ years. It's rural land with primarily wells and septic tanks and "her" land won't perk according to my dad although they had been living there for years in a house that's been abandoned (since her husband passed a few years ago). I suspect her son is driving this with an intent to rebuild on "her" property. Oh well...time to "lawyer up" :).

ps: I would have been willing to write a check for a reasonable amount to remove the easement, and we would have likely granted permission to run a water line accross our property BUT for their "sneakiness". My dad (and his brothers) were totally caught by surprise and now I'm prepared to spare no expense in fighting this as it's become a "matter of principle" for our family.

Thanks again!

If her land wont perk she isn't looking to run water across it she is looking to make a septic drain field there.
Using an easement for land access is one thing but I doubt there is a provision to use the easement for a septic field.

I hear what you're sayin' Rick. Just waiting to see how this unfolds...I think when "she" realizes our opposition and actions we "can" potentially take, she'll back off. Their prior "drain field" was part of our family land that's not related to the easement, but we "let it slide"..."no mas" :)

as per above posts, it will depend on your state law & maybe more local laws (county and/or city)

Adverse possession has been ended in some states, like Oregon.

unless an atty in NC happens to see this - knows the answer & posts you are going to be stuck paying some bucks for advice

be sure to get all the facts & a diagram/map together for the atty

the other party might have some problems if they try to use it to access water & that was beyond the original scope of the easement

The issue is probably whether the easement runs or is abandoned.

Your case will be that it was abandoned because of some action that your family did within the easement during the last 35 years. Easements do not run in perpetuity, period. Only when an agreement is recorded across multiple parcels will that agreement run with the land.

Not sure if this might have any bearing....but who has paid, or not paid, the property taxes on the easement land for X years?

Sounds a little strange.
First they just need access for a fresh water pipe.
Then the son wants to run a new driveway for a subdivision?
Hmm...

I would go through county records ad naseum, and talk with clerks,etc ASAP before paying a laywer by the hour to do the same thing.

Thank you again everyone...I didn't really expect "free legal advice" here as I'm sure it'll require a NC atty familiar with our local laws (and hopefully the judge :)). I want to "attempt" to head this off before taking legal action, and the responses on this thread have indeed been helpful along with the online research I've been doing the past few days. Just getting my ducks in a row. I really appreciate it....

ps: The only action the other party has taken is a preliminary survey...any suggestions on how to prevent further action that can't be undone (i.e. damaging 75 year old trees along the original property line) while this gets sorted out?

Does grass growing in a vacant field count as action on our behalf :)?

Definitely not. I would make the argument that since they are using another driveway, they have abandoned the easement, which was for vehicular access.

We have removed easements for canals that are no longer in use, for irrigation ditches, railroad (much more difficult) tracks, etc. Easements do not live on forever, or you wouldn't have been able to build half this country. There would be old Indian trade routes, wagon trails, steamboat and cable car routes, telegraph lines, and the like that would prevent new construction.

I work for a utility agency that has easements dating back to the '30s & '40s.
N.C. laws may differ but in San Diego County all easements are on file at the County Recorders Office. It wasn't recorded, it's not a valid easement. Also, our easements once recorded, never expire and are not affected by 'non-use'.

this sound pretty good to me -- also, if you have taken some action in reliance on their abandonment it looks even better

Good Luck with this

That'll be one of my points...thanks!

You know, when I was a kid, my grandfather would use a barn post to practice with his .45 that's right adjacent to the easment...I could set up another target post on the other side of the easement at say 50 and 100 yds. My uncle already has a range there for scoping in rifles but one can never have too many places to shoot. I'd be shooting in the direction of the LEO's property and since he's affected also, and not too happy either, I bet he wouldn't mind :).

I hear ya. The driveway she and her brother have been using is a "better", more logical driveway in every aspect imo (drainage issues, "our easment" would be on a bad curve, etc.). Like I stated, I'm betting the "real" reason is for water, and I do not believe the easement grants that. Thank you all!

depends on if it is only an access esmt or a utility esmt
and if it is public right of way or private property esmt

if it is a deed record no it will not go away
and nothing done or undone will change the record
just as a un-used right of way is not abandoned or claimable

I was a public land surveyor for the county water dept
we had utility esmts on nearly every property in the county
walls fences bushes trees even structures built on esmts are very common
our rule was do what ever and restore the site to the same conditions
if we damaged anything on the esmt we paid or replaced it

talk to your local county survey office
they know the local/state laws but as public officials
they will not bill you for asking questions unlike a lawyer


and no a septic tank drain field is not an access or utility use
that you should be able to stop
an esmt only grants certain right of use not unlimited rights or any ownership
a water line from an existing pipe to a property would be a proper use
dumping drainage water on your land is not a proper use

Thanks nota...

It's not a utility easement. The issue is an access easement, and whether it has been abandoned.

Your secondary argument would be that even if the easement was not abandoned (it is), then all it grants is street access, not water utilities, nor sewer, which is a separate easement. Property rights are famously like a "bundle of straws". The neighbor has one straw, not two, not three. You have the rest of the bundle.

As the OP seems to have his easement questions mostly clarified, may I interject my situation.

I've live on 5 rural acres, last house at the end of a 1 mile road with maybe 10 houses along it.

Single lane gravel road weaves mostly along the property lines, 20 foot easement for ingress/egress/utilities each side of the property line.

No HOA and mostly neighborhood volunteer or self maintenance by owner of brush clearing and keeping tree branches trimmed back.

So of course I have some extreme tree hugger neighbors who demand that I do not trim branches back on their property. They are happy with brush almost scraping down the side of their cars or branches hanging low overhead.

So what is clearly defined as "clear access"? They grant me the right to drive across their property, but in the last 10 years tree branches and black-berries have started to intrude 2 feet over where the "old edge" of the single lane gravel road existed, and the driving path has slowly inched over to the opposite rode side of Tree Hugger, where now tire tracks of UPS trucks or even my own cars are starting to drive off the existing gravel road bed into softer dirt (still withing the +/- 20 foot easement) but off of the existing road path.

While asking nicely can I just trim 1 foot off the branches, you get an harsh yelling match back NO, just let the branches brush down the side of your car, or move the road over.


doesn't help that I also have a ~12' tall truck camper while loaded on a full size Dodge, as then low overhead branches become an issue too, and I've been scream at that it's not his fault "I bought too tall of a truck camper" Let the branches brush against it..........

Just some back ground, this guy is the local villiage idiot, who will take people to court in a heartbeat and generally is a old hippy control freak that honestly is mentally unstable.

I almost just want to spend $300-400 on more gravel to widen the road away from his property rather than deal with his ranting and getting in MY face for HIM not keeping simple small brush trimmed back.

so what is the definition of a "clear easement"? The right to drive across a persons property, but what about "reasonable clearance" so you don't get car damage?

I just want a 1-2 foot setback of the tree branch tip to the side of gravel road driving path, but to Tree Hugger that's asking too much.

thoughts/opinions factual experience or peoples solutions?

KC,

Question, if they wanted only to lay a potable water line to the property and this was the best access point what would you be willing to trade so they could lay the potable water line? I'd think trading the driving easement for a specific easement allowing ONLY potable water line would be reasonable.

I would NOT want their gray water dumped onto my land! It is bad enough their gray water is dumping within 10000 feet of your house and possibly your own well/water source! I do not like septics.... Many people up stream from me have their septic lines going straight into the stream bed. County does not care, zero enforcement.


Dave,

Do you have a sprayer? Do you have access to herbicides? Do not do anything illegal!!

You need to know specifics to your state and county. In my mind clear access with ingress/egress access means no brush or trees or shrubs. I WOULD want the brush and shrubs growing but you would not see me letting them grow to where they interfer with my neighbors vehicles. There are some limits on how far I'll push the tree-hugging! I like having a woody barrier around my property!

generally, you cannot trim branches back on their property

I looked into this once, and most cases are two property owners side by side (share a lot line) - you can trim up to your property line w/o permission.* At a guess, if it has ever been decided by a ct. in your state it was that fact pattern, not an easement.

You could borrow a copy of a NOLO Press book from your library called "Neighbor Law" - it is designed for non-attys. Next step is to look at your state laws, then county, etc.

* Things get gnarly when fruit from their tree falls onto your property...

Buy a beater
and beat the bushes back

I live in an HOA with a total of 25 homes. There is no common property, although it looks like there is. I and my neighbors have an access easement across everyone's property for the street, which is the joining point of all property lines. I only have a right to drive up the street, nothing else. NOTA I think summed it up well.

My uncle ran a title insurance agency in town before he passed. His position allowed him knowledge of interesting parcels. He paid $5K for a triangular plot that was listed as 0.1 acres and thought unusable because of easement ingresses that caused it to be that small. It was at the back corner of two lots where road had been built. When that road was widened to plan for development a developer paid $100K for that useless lot.

If you want to DIY a portion of this - Use the county system and title agent to get a full feel for your issue then confer with a lawyer on what other advice they steer you too. Like others have said: Don't pay $300/hr for clerk type background work you can do yourself. Unless you have that kind of thing - I do!

I think that's an absolutely workable solution if they are reasonable. Just need to talk with them and see...Thanks!


That would be my plan if I need to go that route. I can pretty much lay it all out and let someone who knows the law play the hand. I prefer not to have to do that...we'll see.

In regards to the topic of abandonment of recorded easements, I offer this from Oregon law, it may apply to your case. For what its worth:

Forfeiture and Abandonment (See Section IIC OWRCW – page 9)

An easement ceases to exist when it is abandoned. This does not mean, however, that a person must make continuous use of an easement once the interest is created. Abandonment occurs only if there is evidence of an intent to permanently abandon the easement. A variation in the use made of the servient estate by an easement holder does not necessarily indicate that intent. Nonuse, alone, is insufficient evidence of an intent to abandon.

Case Law Update:

Shields v. Villareal, 177 Or.App. 687, 33 P.3d 1032 (2001).

Curb and bushes installed by neighbors did not demonstrate an intention to abandon an easement across landowner's property as it did not render access to easement impossible or so impractical as to be virtually impossible. There was testimony that vehicles could drive through the bushes and use the easement, and that neighbor's service vehicles had in fact used the easement on several occasions to spread bark-dust and perform maintenance on the rear side of their building. In order to show abandonment, easement holders must have expressed or manifested an intent to make no further use of the easement.

If the need to use an easement has not yet arisen, the easement will not be deemed abandoned by the mere passage of time. However, nonuse is relevant evidence of intent to abandon, unless the nonuse is due to forces beyond the easement owner’s control. Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land ¶ 905 [2] at 9-32 (1988). Nonuse of substantial duration may give rise to the inference of an intent to abandon. A greater degree of evidence will probably be required to establish abandonment when such a finding may result in forfeiture of a valuable right.

Thank you! My position would be that she and her brother have been using a shared driveway via the 1/3 acre my grandfather deeded to the "family" for that intent. That along with 35 years of "silence", not to mention the water issue.

I knew I could get some good advice here :). Soon...thanks!