is it common practice to pay for an easement?

[inquiringK]

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

We built a home in 1997 which was found in a 2007 survey to encroach on the set-backs of another lot, which has been on the market continually since we built. A neighbor on our street recently bought this large lot, and had it surveyed AFTER his purchase.

First his lawyer offered us the opportunity to buy the small part of the lot that was encroached. However, he just "drew a line" on a map, and we don't need that much land to make it legal and within the setbacks. The amount requested for the land was $10,000 plus attorney fees.

Now the lot-owners lawyer is proposing an easement, which we initially thought would be great, because we were under the impression that an easement is not purchased. But they are sticking with the same $10,000 fee for the easement.

Our question is: is it common practice to be asked to purchase an easement?

We can't figure out why we would pay for an easement, as opposed to buying just a small piece of land that would make our set-back legal.

Any advice is appreciated. We are trying to avoid hiring a lawyer on this, but may have to find someone since the other side has a lawyer. This neighbor has bought up all the remaining lots in our subdivision.

 

[tranquility]

Paying for the right is the most common way to create an easement.

Buying a small piece of land does not always solve the problem and is difficult to connect ot the purpose.

 

[154NH773]

Please clarify, is your house actually on your neighbors property, or is it in the setback area on your property? If the latter is true, you may only need a variance, or equitable waiver, from the local zoning ordinance. In this state (NH) it would almost surely be granted if the cost to rectify the problem is too great (like moving your house). If, on the other hand, your house is actually on your neighbors property, you better purchase the necessary property, or the easement (I'd go with the property), or he could possibly sue to have you move your house.

 

[inquiringK]

clarification

Thank you for your thoughtful responses. We are grateful for the feedback.

Our house is on our property - just barely, it comes right up to the property line and violates the 7 foot set-back. We have improvements that cross over the neighbor's property, some cement driveway and curb (we park vehicles here), and some landscaping (trees and rock work). This area is located on the edge of the neighbor's 3.75 acre property, probably near where the owner will eventually put their driveway, as we foresee that an eventual house would be located further in and higher on the lot for views. Our lot is smaller, .5 acre. One complicating factor here, is that the encroached property is basically a drainage ditch (water from the street drains off, starting on the neighbor's property and then gravity takes it onto our property). We live in a mountainous area. Our improvements are on the neighbor's property.

We need about 400 square feet to be legal, and we would like to pay for property along a curved line. This property is not very valuable to either party, being a drainage area. The neighbor's lawyer wanted to draw straight lines for the area to be purchased, maybe this is easier to verify in a survey? That ended up being a lot more property than we need or want to purchase. But it seems like no matter what the solution this lawyer proposes (purchase or easement), it always comes back to the $10,000 amount. We want to pay per square foot, according to the asking price the neighbor has on the lot, which would come to around $5000-6000. The neighbor has an inflated price on the lot, but we are willing to pay according to that high price for the actual amount of land involved.

Should we be required to pay the neighbor's attorney fees? He had the lot surveyed AFTER he purchased it, and then figured out the encroachment. The lot has been bought and sold around 5 times since we have built our home in 1991, and the encroachment was not brought to our attention until 2007. This neighbor purchased the lot as a real estate investment, not for building himself. Seems to us like a cost of his business.

 

[seniorjudge]

If you want it bad enough, you may pay for everything.

 

[nextwife]

Thank you for your thoughtful responses. We are grateful for the feedback.

Our house is on our property - just barely, it comes right up to the property line and violates the 7 foot set-back. We have improvements that cross over the neighbor's property, some cement driveway and curb (we park vehicles here), and some landscaping (trees and rock work). This area is located on the edge of the neighbor's 3.75 acre property, probably near where the owner will eventually put their driveway, as we foresee that an eventual house would be located further in and higher on the lot for views. Our lot is smaller, .5 acre. One complicating factor here, is that the encroached property is basically a drainage ditch (water from the street drains off, starting on the neighbor's property and then gravity takes it onto our property). We live in a mountainous area. Our improvements are on the neighbor's property.

We need about 400 square feet to be legal, and we would like to pay for property along a curved line. This property is not very valuable to either party, being a drainage area. The neighbor's lawyer wanted to draw straight lines for the area to be purchased, maybe this is easier to verify in a survey? That ended up being a lot more property than we need or want to purchase. But it seems like no matter what the solution this lawyer proposes (purchase or easement), it always comes back to the $10,000 amount. We want to pay per square foot, according to the asking price the neighbor has on the lot, which would come to around $5000-6000. The neighbor has an inflated price on the lot, but we are willing to pay according to that high price for the actual amount of land involved.

Should we be required to pay the neighbor's attorney fees? He had the lot surveyed AFTER he purchased it, and then figured out the encroachment. The lot has been bought and sold around 5 times since we have built our home in 1991, and the encroachment was not brought to our attention until 2007. This neighbor purchased the lot as a real estate investment, not for building himself. Seems to us like a cost of his business.

How did this happen? Did you fail to properly survey (or have you general contractor do so) prior to construction, have the foundation lines set out and then get a foundation survey after the foundation was in place to verify proper placement before then proceedibng with construction - and that your structure would NOT be violating any set back, property, easement or ROW lines? Did you carefully review, or have an attorney and your surveyor review, your title policy, so that all title restrictions and easements were considered in decisions on placement, so as not to create any violations?? One does not merely guess where these lines actually siut ON THE GROUND When spending the kind on money one spends to build any structure, even a garage or lot line fence, ine should do so with benefit of a current survey, and have the surveyor set out the stakes for placement. In this area, no title company will insure new construction unless there has been a foundation survey and re-certifaction after the foundation is built.

If you failed in your due diligence during the planning and construction process, then YOU are at fault and should be happy they are willing to work with you at all to fix your mistake. It is not that hard to make certain the structure is properly placed on the site so these things do not occur. And YES, easements are purchased every day. The owners have no obligation to sell off a piece of their land to you, and can insist they only wish to sell easement rights.