Driveway easement question...help?

[KFC911]

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!

[Hugh R]

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

[Dantilla]

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.

[944Larry]

think real estate attorney on this one.

[70SATMan]

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.

[Eric Coffey]

Originally Posted by KC911

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!

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.

[Eric Coffey]

Originally Posted by Dantilla

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

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.

[drcoastline]

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

[drcoastline]

Originally Posted by Eric Coffey

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.

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.

[Eric Coffey]

Originally Posted by drcoastline

As I recall adverse posetion takes place after 20 years.

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.

[rusnak]

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.

[Eric Coffey]

Originally Posted by rusnak

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.

[rusnak]

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.

[KFC911]

Originally Posted by 944Larry

think real estate attorney on this one.

Absolutely!

Originally Posted by 70SATMan

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.

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.

Originally Posted by Eric Coffey

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.

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.

Originally Posted by rusnak

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.

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!

[Rick V]

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.

[KFC911]

Originally Posted by Rick V

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"

[RWebb]

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

[rusnak]

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.

[john70t]

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.

[KFC911]

Originally Posted by RWebb

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

Originally Posted by georgeinhere

Laws are different everywhere. Lawyer up, it'll be expensive and messy.

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?