What is An Easement?
An easement is a type of legal permission granted to someone (normally an adjacent neighbor) to make use of property they do not own. Property easements often allow neighbors (the easement holders) the right to use land they do not own to gain access to their own homes. Easements also may provide underground utility infrastructure (such as sewer lines, power lines or water mains) in situations where it is practical to provide this type of shared use.
Good Easements Make Good Neighbors
Easement agreements on some properties may be decades old, or even hard to identify in property or public records. They usually turn up in situations such as subdivision construction or remodeling of existing homes. Sometimes easements are intended to remain in place forever – but this is not always true.
Disputes can happen when easements expire or need to be relocated, or when disagreements arise about the terms of the easement. There are sometimes situations where neither party – neither the property owner nor the neighbor – are aware an easement exists. Even if both parties amicably negotiate relocation of an easement, legal issues may surface impacting future owners of the property. A good easement relocation is much more complicated than a handshake.
The Messy Business of Easement Relocation
Here are some situations that might call for legal assistance:
- After subdividing his large lot, the owner of a 100-foot gravel driveway provided an easement for his new “flag lot” neighbor. Both parties are responsible for maintenance of the driveway, including gravel replacement and tree maintenance. An angry dispute arose when the original owner decided to pave and widen the driveway, requiring removal of a border of mature trees. The easement owner objected to the aesthetic and disruptive changes.
- A family purchased a home in an historic urban neighborhood. One morning they discovered water gushing from beneath their rose garden. A discussion with the neighbor and a check of old city records revealed a water line easement dating to 1910. The rose garden was ruined. The damaged party sought relocation of the easement to prevent future issues.
- A homeowner approaches her neighbor to request an easement allowing her to construct an ADU on her property. The friendly neighbor grants an easement of four feet by 20 feet to a section of his property line. A year later the neighbor sells his house, and the new owners are unhappy with the easement and seek a term limit on the agreement and damages because their realtor did not bring the easement to their attention.
How to Avoid Easement Relocation Nightmares
Study the small print that explains your easement. If available, compare notes with documents on file at the Recorder’s office. Determine if relocation of the easement is feasible or even allowed.
Due to the complexity and detailed communication required to relocate an easement, contacting a real estate attorney early in the process is highly recommended.
Easement Relocation Punch List
– Clearly define the justification for easement relocation.
– Meet with the easement holder to discuss the project and attempt an agreement. Be open to potential financial or other types of benefits for the easement holder.
– Notify any additional parties such as nearby neighbors of changes ahead for the easement if they might be impacted. This avoids misunderstandings later.
– Check in with local officials about the specifics of the easement relocation. This is an essential step. If easement modifications are not “up to code” trouble will follow. Comply with local regulations throughout the project.
– With the aid of a real estate attorney, work out terms for the relocation process. Double check your local jurisdiction rules.. Easement laws vary from place to place.
– Record the updated easement with relevant city or county offices. Request documentation of the updated easement for your records. Keep this information in a safe place.
Sometimes court approval of a relocated easement is required. Litigation becomes a last resort if negotiations sour.
Easement Relocation Caution
Few real estate legal matters can generate unforeseen costs like easement relocations gone bad. An early conversation with a real estate attorney can help you avoid needless missteps and delays. If your easement relocation is in progress and has already become overly complex, seek legal guidance as soon as possible.
Know Your Rights. Protect Yourself.