Calling all easement guru's.

[drcoastline]

In the 1930's a family owned business bought three consecutive parcels of land. We will call them lots A, B and C. Lot A was 60' wide. B and C were 30' wide each. The family deeded 2' of lot A to lot B. Lot A is now 58'. B is 32' and lot C remains 30'. The business then deeds each lot to a family member. Each lot then has a building constructed upon it in the 1940's. These are commercial parcels and buildings.

Lot A, 58' has a building constructed 54' wide with 2' on either side between it and the property.

Lot B, 32' has a building constructed on it that is 27' wide and sits on the left side property line of the lot.

Lot C, 30' has a building constructed on it that is 27' wide and sits on the right hand property line of the lot.

This creates an 8' driveway between the buildings B and C. 5' from lot B and 3' from lot C. At the end of the driveway in the back of lots B and C a common garage was constructed at the same time of the original buildings with a dividing wall between each side and each has it's own door.

In the late 1970's the garage on lot C catches fire and is ultimately torn down. However the pad remained and was being used for parking.

In 2000 a person buys property A. In 2005 the purchaser of property A buys property B. Shortly after purchase of B they tear down the building including the garage. They then erect a fence down the property line. Access to the parking pad behind building C is now blocked. They then create a curb cut between the property lines of A & B (with out permit or approval).

Property owner C objected to the fence with the city but did not move forward.

This situation remained as is until yesterday.

Yesterday the owner of property B hires a masonry contractor who tears up the sidewalk in front of B and removes the curb cut between B and C. again with out a permit.

Property owner C contacts the city and objects to the removal of the curb cut. The mayor of the town comes and takes a look and approves the removal of the curb cut for a solid curb.

What say the guru's regarding this situation?

[70SATMan]

The formal easements if any would by listed in the property abstracts. If the abstracts do not list formal easements for the properties then it's tough to enforce.

In some states land use (if unhindered) over a period of time can be leveraged to grant an easement.

My experience is only with residential property not commercial.

[rusnak]

Property C can claim to have an access easement. Or a hostile easement, if the curb cut has been in continuous use since the 1930s. I don't think the mayor has didly squat to say about it.

[RWebb]

Location: New Jersey

therefore, the mayor can do anything he wants (if he is "connected" and if he isn't how did he get to be mayor?)

[rusnak]

In New Joisey you call your cousin's buddy Ezekial, who drives a concrete mixer and have him dump a load in the dis wisguy A/B's bathroom. Yo, badda-bing, you get the curb cut back next day.

[mikesride]

If I understand this right, the one single property would only have access to this pad via the property owned by the individual that now owns the two lots??? Maybe I am confused.

[RWebb]

easement by necessity might work

[nota]

lawyers are needed

''C'' had created a esmt by use of the curb cut and D/W between the building a+b

the owner of a+b is trying to close the esmt/D/W

time is running /may have run out but talk to a lawyer and a surveyor
the surveyor may well know the local law better then a lawyer
so try to find one who is the guy on use access esmt/D/W's
I would ask the surveyor first and if he thinks you have a case
then talk to a lawyer

[rusnak]

The strongest argument is that the driveway easement has been in use. If the driveway has not been used, then the A/B guy can say that C abandoned it.

What is needed is more facts. A consulting civil engineer, not a surveyor or lawyer, would know this well because they deal with easements every day.

[drcoastline]

Originally Posted by mikesride

If I understand this right, the one single property would only have access to this pad via the property owned by the individual that now owns the two lots??? Maybe I am confused.

That is correct.

[mikesride]

well, that sucks. Zoning and bylaw would be my first call, followed shortly after by a call to my lawyer just to make sure I am covered. My girlfriend is a city building inspector and works closely with the bylaw department. She see's this stuff often and in our community land possession almost always trumps assumed easements..... Good luck, there have been instances where an arbitrator rules otherwise but then the party seeking easement encampment must be able to pay retribution to the other party. I hope this turns out for you.

[ossiblue]

A quick look into New Jersey easement laws doesn't look good for owner of property C if there is no written, recorded easement known as an Express Easement. From the OP, it doesn't sound like this applies.

A Prescriptive Easement would only apply if the driveway was used by C for over 20 years without the permission of owner B--current or former. From the post, that does not appear to work as the driveway and garages were being shared.

Quasi-easement by Implication would apply only if property B and C had shared the driveway and property B and C had been owned by the same owner or both B and C had partial ownerhsip. This isn't the case as B and C had been deeded to different individuals prior to the building/use of the driveway.

That leaves Easement by Necessity. However, this requires that property C was separated from B, and is only accessible by an easement across B, meaning C is completely landlocked by B. This does not appear to be the case either.

My understanding is these were always three separate properties with three separate owners. The three properties were developed under three separate owners. The creation of the driveway was, apparently, done by mutual agreement between two separate owners and without an express easement. That being he case, under NJ law, owner C has no easement claim to the driveway.

I'm not a lawyer so the above is worth as much as my law degree. Talk to a NJ real estate lawyer as there may be some nuance that may help out owner C.

[wdfifteen]

Adverse possession may apply here.

[notmytarga]

Address - so we can streetview. Google Earth over time?

[greglepore]

Adverse possession requires that the use not be by permission. If the building has street access, no necessity...never mind that the parking lot is in the back.

[MRM]

This is one of the most complex areas of law you can imagine. Tracing and establishing easements and other conveyances going back to the 30s, relating to separate parcels that were once owned jointly, is a nightmare. It's just insanely complicated.

The city, city code or business inspectors and mayor have nothing to do with whether their is an easement. They can determine whether the work the other party is doing meets code, and they might put the kibosh on construction while ownership/easement rights are established, but usually they won't get into it with anyone.

There are two or three issues to deal with. Is there a "conveyance" in the property' title that grants an easement or other property right. Second, is there a prescriptive easement that exists because of the nature of the property and the restriction in access without going across the other property. Finally, if there isn't a formal conveyance on the title or a prescriptive easement imposed by law without being recorded on the title, there's the issue of possible adverse possession.

If money were no object the first thing you should do is hire a lawyer who specializes in real property title issues, preferably someone who has worked as or for a county register of deeds. He would hire a title company or another professional title examiner to look at the title to see if there is an easement on the title. He would also know how to claim and record a possible prescriptive easement or claim adverse possession if appropriate. The way you resolve the issue is to sue the neighbor with a suit called a declaratory judgment action asking the court to declare whether their is an easement under any theory, and to declare what your property rights are and what the neighbor's property rights are. This can be extremely expensive and contentious. Property disputes between neighbors cause some of the worst blood between the parties of all types of disputes there are.

Since money is always an object, I would suggest calling around to title insurance companies, describing the issue to them and asking how much it would cost for a title search specific to the easement issue. They will have several options, ranging from a full abstract to something like a commitment. I would start with a title insurer for a title examination and see what you have to work with as a starting point.

[RWebb]

some states have out lawed adv. possession, prescriptive easement - as noted above a NJ lawyer is needed

I agree re trying to get some title res. done on your own

[rusnak]

I agree with the last paragraph of MRM's post above and with Randy's last sentence.

I have developed real estate in California for almost 20 years, and I deal with easements all the time.

Since I have experience with them, my first step is to call my title company, and get a "preliminary title report" which list all easements recorded on the property. You give them your property address, and I'd include the next two parcels over. It'll include deeds, easements, covenants, and liens, open property taxes, etc etc. You want to focus on the easements, and request conformed copies of the underlying document(s). Easements should be listed first. You can also have the easements plotted for you if you request an ALTA survey.

I would take that information to an attorney. With ALL DUE RESPECT TO MRM (I am not bashing you), the attorney who says it's complicated is not your guy. It's his job to make the complicated simple to understand to his client, which would be you. Have the attorney do an opinion letter as to your street access rights vis a vis the the historic use of the curb cut. Have him send this letter along with a cover letter explaining that you seek to have your access restored by the owner of Parcels A and B and that you are prepared to protect your property rights. Ask for a meeting with the property owner to discuss logical, mutually agreeable solutions to the situation. Don't go adversarial unless you have to, and there is no other resort.

Best of luck to you.

[dad911]

In NJ the town/county typically owns the road and an area on both sides. The curb/sidewalk, etc is usually in this township right-of-way, and work cannot be done without permits issued by township Road Department or Township engineer.

Owner of 'C' is part of original family?

I believe in NJ prescriptive period is 20 years (looked it up in RE license book) but would have ended/reset with the erection of fence? Have to see a lawyer on that one.......

[drcoastline]

A little update. Title company has been contacted to do a search on both B & C properties. A search was done but only on the deeds. Apparently the easements are recorded separately. City has halted the work on the sidewalks and curb cuts until Wednesday so the city attorney can do some research. A real estate attorney has been hired and retained by C. The attorney just happens to have his office on the other side of property A and is keenly aware of what has been occurring over the past few years and days. Unfortunately the last owner of the family that original constructed the buildings died two years ago. No current owners are from the original family.

Rusnik- attempts in the past to speak with owner of A&B fell on deaf ears. He is just one of those people. In fact what he is doing is adverse to his goal as he cuts out 3 feet of usable driveway.

Property B- is 123 E. 17th Avenue, North Wildwood, NJ 08260

Property C- is 125 E. 17th Avenue, North Wildwood, NJ 08260