Easement clarification

Question

Hi,

I bought a lot subject to an easement. The easement was on the northwest corner of my property and was basically a driveway so that my neighbor could get to his property. Originally when the city conducted a survey the driveway was 490 square feet. When I built the house I enlarged the area and repaved it. The easement was supposed to be maintained by my neighbor but he wanted me to repave it and I figured that I would enlarge it and he can use his half and I would use my other half. The entire area is now 2000 square feet. We are now having a dispute because my neighbor wants to use the area to park his cars and basically thinks that its his property. He wants to go to arbitration. The language that is now in dispute says:

1(a) Grantor grants to grantee an easement for ingress and egress across, over and on Parcel 2 (my parcel) for the benefit of Parcel 1.

1(b) The easement shall exist as it existed as constructed on August 1999 on the northwest corner of Parcel 2

2(a) The Grantee shall be responsible for maintenance of this easement

2(b) Grantee shall have exclusive use of the area within the easement.

I have three questions:

I thought that this meant that he has a “right of way” easement. All sample easement language that I looked at regarding ingress and egress say “ingress and egress across, over and on” He thinks this means that he basically owns the land and I think that this just means that he can cross over and on my land to have access to his property. Who is right?

Regarding 1(b) can I not add and enlarge it to use my property for myself?

Does 2(b) mean that I cannot go on that area? Does it mean that he can keep me off of that area of my property? I thought that this meant that I can’t sell it to anyone else and he has exclusive rights to use that area to use that area to drive on and off of his property. Am I wrong?

Answer 1

I really hate easements.

You do not loose your right to use your property.   You can't fence off the easement, but it is still your property and still private property.

He has the right to enter and exit his property via yours.   The exact path he has access to is in the easement, it would be the 490 feet.   He has no rights to use more of your land then that, no matter what you did to it.

He can not park his cars, nor his friends cars on your property.   It is not a public thoroughfare, but private property.  YOUR private property.

He does not own the land and can not do as he wishes with the land, it is still yours.   You simply can't deny his use of it.   All driveways, lighting etc have to be paid for my HIM.   This also includes any retaining walls due to grade.  While he pays the bill for his access you have to OK all changes, because they are made to your property, not his.   Because it is your property you own any upgrades made on it, even though he paid for them.

Answer 2

To interpret the language here. As I read it, The grantee is the neighbor. If he is the one responsible for the maintenance. And 2.b says he has exclusive use of the area within the easement. So he can park his car there. The survey from the city is hopefully from august of 1999. Because if it is not, it is a case of who can show clearly what size the driveway was constructed as of aug. 99. If he gets his car parked outside of that area, have it towed and this will really heat up. Exclusive use can mean that you have no property rights in that section. Go to non-binding arbitration to get a feel on what can happen here. Non-binding so that you do not necessarily have to abide by the decision. It may be for a judge to decide eventually in civil court.

Answer 3

IYou need to get a real estate lawyer.  Your neighbor has the right to cross your property to get in and out of his.  I don't think ingress and egress means you can take over that area for any other use.  Sounds like the land is yours and he can cross it to get to his.  The road can't be removed or decreased in size, but I'd say it was okay to make it bigger.  However, the problem comes in with the language, "The Grantee shall have exclusive use of the area within the easement."  I would argue that that means others can't use the road, but I don't see how he can keep you from using the road.  If you decide to go to arbitration, I'd look up the legal meaning of easement, ingress and egress,  for your county and for this type of use.  Then I'd write a chronology of all the events starting with when you bought the property, stating the size and condition of the easement.  Include any cost data you have.  Can you recollect any conversations you had with the neighbor about the driveway.  Can you call the prior owner and ask him about the history of the driveway and maybe he could come to the hearing and speak about it's history.  I don't think your neighbor can park cars on the driveway and keep you out.  He is entitled to drive over the width that existed in 1999.  I'd also look up the legal definition of driveway.  I don't think it means parking pad.  I think your neighbor is trying to change the use of the easement.  I guess if push came to shove, I'd have to have a paving company come out and decrease the size of the driveway to what it was in 1999.  I hope you haven't condoned or acquiesed to any of his assertions.  I'm not a lawyer, but I was an LR specialist, and "construction" and legal meaning of words is everything in contract disputes, as well as "bargaining" history (what led up to the agreement), past practice--in your case how has the easement been used since 1999.  Good luck.  Why in the world do people want to act this way!!!!!!

Answer 4

You are right on all points except the last one.  He does not own the land--you do.  He can not keep you off your own land but you can not deprive him of his use of the land.  You can sell the land but it would be subject to the easement.

"When I built the house I enlarged the area".  How is that possible?  An easement is a surveyor's line--you can not enlarge that!  You pave it and he uses it--what a generous neighbor you are!!!(Why you paved his easement I will never know)  He can't use anything but the original easement and the extra paving is yours and his use of it is trespass.

The phrase "exclusive use" bothers me and could be interpreted in different ways.

  I don't think I would arbitrate your issues but rather I would find something to sue him about--like parking on your property if he insists on doing that.  I look at this as an attempt to steal your land and you should stop him cold or else he has won.

You should really consult a lawyer on this to find out all your options.

Answer 5

he doesn't own that piece of land, it is still yours. however, you may have enlarged it just for him, that is what 1(b) sounds like to me you may be able to put up a divider on the driveway. separating the original 490 square feet from the new area. i don't think he can dispute that being that it is your property

Answer 6

Your abutter does not own the land under the easement.  I dont know how the city came to be involved in surveying an easement.  Maybe because of building set back requirements?  Is that survey recorded, or do you have a copy of it? If it is an accurate survey which you have both respected, that's the answer.  

It is clearly the grantee's responsibility to keep it clear and open so he can use it --which is 'maintaining it'.  But you were being a good guy and at his behest, because he asked you to, you paved it and at the same time also paved part of the rest of the lot. YOUR lot.  No harm done.  You own the entire parcel of property and if you want you should be able to pave the entire parcel which you own if you so wished, so long as you don't restrict his access.  Maybe he can no longer visualize exactly where his easement lies, and he is afraid you are going to try to use a piece of it.  Anyway, don't give him one inch more than he is entitled. I would not go to arbitration and give up the use of my property rights just to appease someone.  If you cave in and enlarge his easement, your property value will be diminished.  Use YOUR property right up to the traditional easement line.  

Answer 7

It is for access only. You must not let neighbor park there.  Neighbor could eventually claim it by adverse possession, since he was taking possession forcefully, against your will.

I would report to building inspector.