Basics - Can Original Intention of Easement Be Used to Bar Development of Neighbor?

[arnie582]

What is the name of your state? Oregon.

Fact Pattern: A and B are neighbors and both own property zoned R-1 for residential single family use. B has a flag lot and accesses his property by an easement road / driveway ("for general road and utility purposes") (B has no other means for entering and exiting his property). The easement is on property owned by A.

B wishes to subdivide his property. And so, B would own two lots, one with the existing house, and, if things go well, the other w/ a new single family home.

A is posturing that he would not approve the use of the easement for additional traffic, noise, crowding on the road, etc. resulting from the building of the additional home. He also doesn't want to have to alter the road / driveway in any way, mainly due to the trees, shrubs, structures that are part of that access driveway. Note that the City road ordinance requires a widening of that access driveway to 20 feet (in order to service two single family residences). It's currently at 8 feet. the legal easement reads 20 feet.

Mainly, A asserts that the easement (language stated in the quotes above) was not originally drawn / intended for two houses, but rather only for one. So, A would block it's use for two houses.

So, my main question (or set of questions) is this. Given the above, is the original intention of the easement to serve one family, sufficient to prevent the expanded use of the easement for two families? I know in-fill is encouraged in my town and the City is likely to grant the subdivision. It will not interfere, though, in any neighbor disputes. So, if I can't get the neighbor to agree to driveway / road fixes, then I'd be stuck / precluded from building on my subdivided land (I wouldn't be able to get an occupancy permit on the new house without a 20 foot road). I'd like to get a feel for how strong A's argument is.

Any feedback on this would be much appreciated.

 

[Ozark_Sophist]

Post the exact language of the easement.

I live on a flag lot as well and owner by road attempted to restrict easement width. My easement included the phrase "over all that part of" so neighbor could not restrict easement.

 

[arnie582]

He's not attempting to restrict width or character of easement. He is attempting to restrict purpose and use. I can't change the language of something already set as a very general access easement. I'm looking for answer as to his rationale and if it's reasonable to fix the purpose of an easement drawn fifty years ago, when development was not contemplated.

 

[justalayman]

first, since the easement is actually 20 feet wide, it can be developed to that 20 foot width so your assumption of it isn;t wide enough is wrong. It is wide enough to meet the legal requirements.

Now, as to can the use be restricted:

very often, yes. The grant was given for 1 single family residence. Adding a second residence could be considered overburdoning the easement and would not be allowed, in many cases.

At that point, if he wants to push the issue or he moves forward with his project, one of you are going to have to go to court and ask a judge to decide the answer.

 

[arnie582]

It's not an assumption that the driveway isn't wide enough. It's a fact. The local requirement for the zoning is that a 20' road is required to access more than one residence. Right now, the 8' driveway is servicing property B (my flag lot). So, in order to meet the city ordinance requirement, I would need to ask for or compel the neighbor to widen the access to 20' (if I want to build a second residence) (which I do want to do).

As to your observation that my use may be restricted, I agree, but I question your reasoning. If the current 8' driveway services my flag lot, then how would a 20' easement be considered a "overburdoning" of the existing easement (which is legally 20').

I realize that your using conjecture about what a court might do. I realize that this may be a difficult questions, as well (even though I was hopeful it was an easy question). I think I'm at the same end conclusion as you about going to court on this. I'm looking for an alternative or creative means of not having to sue my neighbor. I'm looking for something compelling to present to the neighbor (property A) to convince him or urge him that he would not prevail. The whole idea of development of one's property and subdividing / building demonstrates the simple notion that intentions very often do change over time with respect to what someone does with their property. It's done all the time. So, why wouldn't it be normal or expected that the same changes would or could or should occur with respect to easements. My easement is general enough that it could be left open to wide interpretation. I'm not sure if that would work for or against me. Common sense tells me that my desire to develop and build a house outweighs neighbors intention to prevent me from doing so - for such reasons as the intention of the original easement was for one house and not two, or for the reason that neighbor doesn't want to incur the costs (which I'm willing to incur), etc.

Thanks for your input, though.

 

[bestrong98]

You bought the land with the easement already stated. Just because you wish to build another residence does not mean you can force someone to grant a larger easement.

 

[tranquility]

Failing to spell out the purpose of an easement is a problem. Saying things like "a driveway" or the like lacks craftmanship and can be a cause of later litigation. A good draftsman will state the amount of vehicles or properties or residences the easement will cover. In the "fact pattern" this is not spelled out in detail. Generally, an easement holder is allowed to make such improvements as are reasonable to have the easement serve it's intended purpose. As in most things legal, *reasonable* will guide without specific languange on the deed.

I'm thinking, from the language, the OP is B and wants to increase access to the easement to the defined size and increase the traffic on the easement. The first is clearly allowed. The second is a fact for a jury to decide if it is reasonable to the purpose of the easement.

 

[justalayman]

arnie:

It's not an assumption that the driveway isn't wide enough. It's a fact

while you speak of the actual width of the drive, the easement already is at the required 20 feet. If the locality requires there be an actualy 20 foot wide drive, there is nothing preventing you from making it a 20 foot wide drive.

the problem is with the possible overburdoning: it doesn't matter of the drive is 3 feet wide or 30 feet wide, overburdoning is not related to that specific value. An easement is typically written with a specific use in mind. Anything beyond that specific use would be considered overburdoning the easement.

So, still, you can apply for your permit to subdivide and build. I would think the neighbor would be notified of your application and given opportunity to contest. If the permit is granted, start rolling but when he takes you to court and wins, don;t be upset. It is possible you could win as well but since we do not have the actual grant of easement to read and do not have access to the writer to have him interpret the intention, it is only a guess as to who would win.

btw: if the guy in front is the original grantor, I would bet money you are going to lose.

 

[arnie582]

Justalayman -

While I don't like the answer, I think your reasoning is sound. The original grand was in around 1975 when the original farm land was developed. The current owner of the land / the neighbor in front / the guy that owns the land the easement is on was not the original grantor.

I was hoping that I might prevail for the following reasons: 1) the age of the creation of the easement; 2) the goals of the community to do infill as part of it's master plan in order to avoid further annexations; 3) the fact that the current 8' wide driveway was sufficient to service my single family house and so how can a 24' wide road be overburdened for one more house; 4) my willingness to improve the road and pay for it; and 5) my willing to agree to increase my share of the cost of shared road maintenance.

I'm hoping that you may be wrong about the general language of the easement stating that it's "for road purposes" (and that's all it says) would work against me. I'm hoping that the vagueness of the language doesn't work against me. It seems to me that if he owns the land, it should be his obligation to indicate in the easement language that there's a further restriction on the easement to prevent development. Why would the Court not support the grantee, when it's the grantor, who created the language, the vagueness of language.

Also, anyway, it's just one house. It's going from one house to two houses. How could that "overburden" the easement. It's a three hundred foot driveway. There would be no great change in traffic, even if traffic doubles.

True, I'm venting a bit. But, I'm staying within the bounds of reasonableness. I think there are many compelling arguments to have a court see it my way. And I haven't lost sight of the main argument against me, that I don't own the land on which the easement exist.

Do these "arguments" change anything for you, in terms of opinion about my chances?

Arnie

 

[justalayman]

1) the age of the creation of the easement;

makes no difference and realistically, 33 years is not a long time in terms or real estate situations

2) the goals of the community to do infill as part of it's master plan in order to avoid further annexations;

this has nothing to do with it. It is a legal matteroif what the easement allows. The government has absolutely no say in the matter other than make a decision on what the easement was intended to allow, if it goes to court.

3) the fact that the current 8' wide driveway was sufficient to service my single family house and so how can a 24' wide road be overburdened for one more house;

Now you are changin it to 24 feet. You will not get to widen the easement. If you need to, give up now because it ain't happening.

4) my willingness to improve the road and pay for it; and

that would be your responsiblilty anyway and this actually throws another wrench in the workd. Serviant tenant can argue paving is not allowed, and probably win. Too great of change from the original grant.

5) my willing to agree to increase my share of the cost of shared road maintenance.

what are you talking about. This would all be totally your expense unless the guy out front uses some of it. Then, he wold only be responsible for the minor percentage he uses and only a percentage of that with your liable for the rest.

I'm hoping that you may be wrong about the general language of the easement stating that it's "for road purposes" (and that's all it says) would work against me.

that's not what I said. I said that an additional house would and residents would overburdon the easement as to what it was intended for.

It seems to me that if he owns the land, it should be his obligation to indicate in the easement language that there's a further restriction on the easement to prevent development.

the origianl grantor is who wrote the easement and it cannot be changed without mutual agreement or court intervention. He is not in a position to alter the grant.

Why would the Court not support the grantee, when it's the grantor, who created the language, the vagueness of language.

because since the grantor had no requirement to grant such an easement, his intent for the easement is taken strongly into consideration.

Also, anyway, it's just one house. It's going from one house to two houses. How could that "overburden" the easement.

because the easement was granted with one house in mind, not two.

It's a three hundred foot driveway.

I don't care if it is a 3 foot driveway. You are trying to force this guy to alter his living style for your benefit.

There would be no great change in traffic, even if traffic doubles.

sure there would. There would be 100% more traffic. That is a great amount.

True, I'm venting a bit. But, I'm staying within the bounds of reasonableness.

actually, no, you aren't. You bought the property with the easement as it is and now you expect the guy to give something up for nothing. What is he getting out of this?

I think there are many compelling arguments to have a court see it my way.

I can't think of a single one.

And I haven't lost sight of the main argument against me, that I don't own the land on which the easement exist.

that is the point, isn't it?

Do these "arguments" change anything for you, in terms of opinion about my chances?

Absolutely. They make me think your chances have gone down from terribly improbable to no way in hell.

You do not have a single compelling argument for the expansion of the use of the easement. You have not offered this man anything yet you want to take.

I do not see a new neighbor for the serviant tenant in my crystal ball.

 

[Ozark_Sophist]

The exact language of the easement needs to be posted. Others have given advice that the width is OK because the easement is 20' wide but that would depend on the language of the easement.

For example, the easement is 20' wide for ingress egress and utilities with ingress egress over the east 12' of the easement.

There are numerous case law examples where ingress egress is restricted to a portion of an easement, particularly where easement serve dual purposes.

 

[danggoods]

You may want to try applying to your city for a variance to the 20 foot roadway rule. Tell them this road is a private drive on private property and that they may not be entitled to, or that its unreasonable to require that you satisfy this requirement. I have a similar scenerio and both my county and municipality do not require me to meet their roadway standards.
You may want to try sending some money this guys way to expand your easement rights. That is really your best option and probably cheaper than litigation with a highly questionable outcome. Good luck.

 

[arnie582]

As the originator of this issue / thread, I'd like to keep it alive. I did meet with an attorney for a consult. He doesn't think I'm dead in the water just yet.

I looked over my title / deed documents and the title report shows that the sale is subject to an easement which was filed in 1975. I just now received the actual recorded easement, after requesting it from the recorder's office. It seems like the language has changed over time. The current Easement document reflects that the easement is for "ingress and egress". I think that may be different from the original grantor's language of "for road purposes to be used in common with heirs, successors, assigns". Note that the the title / deed documents summarizes the easement as "a perpetual easement for road purposes to be used in common with others."

The lawyer commented that the original owner / farmer who subdivided / developed the land was a developer. And he thought it might be likely that as the original developer who created that easement in order to sell the flag lot I live on, he would not (as a developer) have an intent to restrict the use of the easement. That would be his guess.

In looking at the history of documents, I also noticed one sale of the property where the road was referred to as "for ingress and egress" with no further details.

It seems to me that if the original grantor was a developer, and put no explicit restrictions in the easement; then a subsequent owner, as the one who now owns the land / road, would or might be inclined to have the easement revised or go more in his favor (so, as not to allow further development).

The all important question about what was the original "intent" of the grantor with respect to this easement is still unclear to me, even though, Mr. Justalayman was pretty certain based on the info I presented.

Thanks for all your interest and input.

 

[justalayman]

If you are going to use the arguement the grantor was a developer and may have considered the added use, explain to the judge why he did NOT split the lot into 2 at the time of division. If you want to claim he was so far thinking and may have considered the easement in the manner you want it to be, why did he leave the lot whole when he had a chance to split them? There would be no question about it but that is not the situation now.

 

[tranquility]

Huggh, huggh, umm...let me clear my throat:

I'm thinking, from the language, the OP is B and wants to increase access to the easement to the defined size and increase the traffic on the easement. The first is clearly allowed. The second is a fact for a jury to decide if it is reasonable to the purpose of the easement.