Is an access easement valid and uf it technically doesn't meet the dominant property?

[Msarbpd]

What is the name of your state (only U.S. law)? Texas

Short question: Does an access easement have to legally touch the dominant property it's meant to service? The physical location is clearly stated and is off from the property boundary line by 1 second of 1 degree in surveyor terms.

Thank you to all who can offer insight!

 

[xylene]

You know what helps - USE PARAGRAPHS. Not so long.

Shorter.

And Paragraphs.

Please edit.

 

[Msarbpd]

Sorry!

I originally posted this on the legal advice side of this website. When I received an email stating that they couldn't answer the question because they don't have anyone in that field of expertise, I copied the posting and pasted it here as suggested. Apparently, the paste feature was kind enough to remove all the paragraph spacing that were previously present. So yes, I will try to go back and edit so people who can more clearly read exactly the same dialog. And every posting I have read thus far on these threads is always received with needing more details than was provided, prompting the original poster to reply with either a much longer secondary posting or having to post several more postings to cover questions about information not initially supplied. So forgive me for being too thorough for you but possibly not thorough enough for someone else. My apologies, I can't please everybody all the time

 

[justalayman]

The dominant tenants will win the argument about it not reaching their property. The intent of the easement was to provide access brought the easement. A slight error in the dimension will be determined to be a slight error in the dimensions. If you disagree with that argument then accept there was an easement by implication which will favor the dominant tenant as well.


You also lose on the maintenance issue. The intent of such a statement is so that the servient tenant of an easement does not have to pay to maintain an easement they don't use. Equity demands that if you use the easement you must assist in the costs of maintenance.

 

[LdiJ]

The dominant tenants will win the argument about it not reaching their property. The intent of the easement was to provide access brought the easement. A slight error in the dimension will be determined to be a slight error in the dimensions. If you disagree with that argument then accept there was an easement by implication which will favor the dominant tenant as well.

I do agree with that.

You also lose on the maintenance issue. The intent of such a statement is so that the servient tenant of an easement does not have to pay to maintain an easement they don't use. Equity demands that if you use the easement you must assist in the costs of maintenance.

I get the impression that the other party doesn't even care to participate in maintenance.

OP, there are things that you can do to discourage them from using any part of your property for turning around and/or avoiding potholes. Some strategically placed boulders, fencing, cement blocks and the like would keep them off of the rest of your property.

 

[justalayman]

I get the impression that the other party doesn't even care to participate in maintenanceerty.

that is m read as well but op believes they have no obligation to aid in the maintenance as well. If they both use it they both pay for it. If the neighbor refuses to do or pay for maintenance, op needs to take it to court seeking a judgment and possibly an injunction.


A couple other possibilities the op may have;

Civil or maybe criminal trespass against anybody entering the op's exclusive property

A civil suit seeking payment for damages the neighbors cause to the op's separate property.

 

[Msarbpd]

Thank you to everyone for weighing in with your thoughts.

To 'justalayman', although I would agree with you for a less vaguely written easement, ours clearly states that:

'Grantor shall not (a) use or permit use of the Easement Tract for any use or purpose inconsistent with or that interferes with the Easement; or (b) construct, place or maintain or allow to be constructed, placed or maintained any obstruction that would or could in any way inhibit use and enjoyment of the Easement. Grantor may, however, use the Easement Tract, and grant other easements over the Easement Tract, for any other purpose that does not interfere with the Easement.'

It also states: 'Grantor shall not have any obligation to construct or pay for any Easement improvements.'

With that said, our easement verbiage is very clear in my opinion. And as anyone with a serviant property knows, we have and will continue to annually pay our share; taxes, insurance, not to mention the price paid for that portion of real estate and the loss of being able to fully use private property located on either side of the fenced in driveway section which totals about an acre. Yes, we knew all this when we purchased this property, but assumed our dominant property owners would forever do their financial part, just as we've done ours. But it is just not so anymore.

To Ldlj:

You are correct, the dominant property owners said will not participate at all in any maintenance and have not done so for the 16 months they've owned the property. We have certainly considered statigically placed larger tasteful boulders being placed about the problem areas but it wouldn't surprise me if they would just move it on us, or better yet, hit them with their vehicle and hit us with a lawsuit. I realize that they certainly legally could not move 'deterants' from various areas of our private property that aren't located within the easement tract, and I realize that the fear they might sue us for hitting anything located on our property sounds silly, but these are those people. They don't care. And I have had a frivolous (very frivolous!) lawsuit started against me before and even though it never saw a courtroom, I still had to hire counsel to properly defend myself which I was not reimbursed for since we did not go to court. Not to mention the cost of my time to deal with it.

There really is no way to prevent them from trespassing into the private portion of our driveway that they kept turning around in short of an automatic gate. Which isn't free, either. But we didconsider it. But we don't feel we should have to make these financial investments to prevent the dominant property owners from repeatedly trespassing.

It seems to me that since they are not landlocked, since they have refused and not physically repaired / maintained the driveway after they admitted it needs it, since they repeatedly trespass onto our property by way of the easement, that we should have really good grounds for terminating it through court proceedings. I was just hoping there was an easier, more definitive way to go about it.

We could maintain the property, but what then? We already know because we tried this once as well. They do burnouts out of the driveway causing yet more potholes and ruts, and they hit a keypad post for the gate opener causing it to be knocked back slightly and the concrete post is now loose. We could ignore their constant trespass, but eventually they try to take that portion of our property and so goes the court battles again! They are those neighbors. They will be a problem the entire time they are there. Lucky us

 

[justalayman]

Thank you to everyone for weighing in with your thoughts.

To 'justalayman', although I would agree with you for a less vaguely written easement, ours clearly states that:

'Grantor shall not (a) use or permit use of the Easement Tract for any use or purpose inconsistent with or that interferes with the Easement; or (b) construct, place or maintain or allow to be constructed, placed or maintained any obstruction that would or could in any way inhibit use and enjoyment of the Easement. Grantor may, however, use the Easement Tract, and grant other easements over the Easement Tract, for any other purpose that does not interfere with the Easement.'

It also states: 'Grantor shall not have any obligation to construct or pay for any Easement improvements.'

With that said, our easement verbiage is very clear in my opinion. And as anyone with a serviant property knows, we have and will continue to annually pay our share; taxes, insurance, not to mention the price paid for that portion of real estate and the loss of being able to fully use private property located on either side of the fenced in driveway section which totals about an acre. Yes, we knew all this when we purchased this property, but assumed our dominant property owners would forever do their financial part, just as we've done ours. But it is just not so anymore.

To Ldlj:

You are correct, the dominant property owners said will not participate at all in any maintenance and have not done so for the 16 months they've owned the property. We have certainly considered statigically placed larger tasteful boulders being placed about the problem areas but it wouldn't surprise me if they would just move it on us, or better yet, hit them with their vehicle and hit us with a lawsuit. I realize that they certainly legally could not move 'deterants' from various areas of our private property that aren't located within the easement tract, and I realize that the fear they might sue us for hitting anything located on our property sounds silly, but these are those people. They don't care. And I have had a frivolous (very frivolous!) lawsuit started against me before and even though it never saw a courtroom, I still had to hire counsel to properly defend myself which I was not reimbursed for since we did not go to court. Not to mention the cost of my time to deal with it.

There really is no way to prevent them from trespassing into the private portion of our driveway that they kept turning around in short of an automatic gate. Which isn't free, either. But we didconsider it. But we don't feel we should have to make these financial investments to prevent the dominant property owners from repeatedly trespassing.

It seems to me that since they are not landlocked, since they have refused and not physically repaired / maintained the driveway after they admitted it needs it, since they repeatedly trespass onto our property by way of the easement, that we should have really good grounds for terminating it through court proceedings. I was just hoping there was an easier, more definitive way to go about it.

We could maintain the property, but what then? We already know because we tried this once as well. They do burnouts out of the driveway causing yet more potholes and ruts, and they hit a keypad post for the gate opener causing it to be knocked back slightly and the concrete post is now loose. We could ignore their constant trespass, but eventually they try to take that portion of our property and so goes the court battles again! They are those neighbors. They will be a problem the entire time they are there. Lucky us

Nothing you have said to me says you are not responsible for maintaining the easement should you use it. Improvements are not maintenance no is maintenance an improvement

 

[justalayman]

And no, you have absolutely no right to terminate the easement especially based on your claims.

You could offer to buy the easement from them though

 

[FarmerJ]

So have you looked at outdoor cameras that are motion based to let you record the area that the neighbor keeps driving on ( You should find out what your county ords require when posting a property regarding trespass ) this way if you had video showing all entries onto your property including your neighbor who comes on to your property then you have some evidence , so say you put up a gate and you do get a recording of them damaging it then you can file complaints with your local PD or sue them for the damage. As far as communication with them by doing things like going to their home, well you have seen how well that works so If you had to communicate with them again use certified mail, keep a copy for your self and staple your receipt to your copy.