Developing a new easement

[wooddirk]

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

looking for advice.

We bought a piece of land several years ago and last year we put a house on it.
The survey shows 2 easements for the property and both are shared easements.
Only one easement has a gravel driveway and culvert put in the road and that is the one we are using.
The other easement is not developed as a driveway and the owners living next to it have the land added to their property and thought it was their land over the years.
We showed the owner (an elderly lady) the survey and told her that as long she would be there we will not make a driveway there as we did not liked to upset her.
Several months ago the lady died and the family put the house up for sale and they sold the house while they were aware of the driveway easement.
A few weeks ago we informed the new owner/buyer by phone about our plans to make a gravel driveway as shown on the survey. In the meantime we also have been given a address number on the road by the 911 coordinator.
The new owner told us that he was not aware of an easement and we supplied him with a copy of the survey plans as he said to take it to an attorney and promised to call us back.
As our last conversation took place several weeks ago and I have left several messages on their answer machine I do not get any responses back.
My question is:
What to do next in order to start building the driveway and what steps to take to avoid a law suit.

Thanks in advance any response will be grately appreciated.
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[154NH773]

What to do next in order to start building the driveway and what steps to take to avoid a law suit.

While your explanation is somewhat confusing over the already built driveway easement, that really has no bearing on the other unbuilt driveway easement.

If you have an unambigious easement across your neighbor's property, you can build at any time. How can you avoid a lawsuit is an entirely different question. Probably a notification to your neighbor from your lawyer, notifying him that you are preparing to proceed with the construction, and containing an offer to discuss it with him prior to beginning, will accomplish one of two things. It will either trigger a cease and desist order and a lawsuit, or it may conclude with an friendly discussion of your rights.

You can go ahead and begin construction without sending a letter, which might trigger a lawsuit or not. In my case I proceeded without notification, believing it is better to ask for forgiveness than to plead for permission. Once you get a driveway built, it would be impossible for your neighbor to prevent you from building it, and more difficult for him to get it removed. Just remember, if you DO NOT have an unambigious easement across his property you could lose a lawsuit, and might be liable for damages.

There is NO way to absolutely avoid a lawsuit. Anyone can bring a lawsuit for almost any reason. Whether they win is another question.

 

[latigo]

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

Before you venture on to your neighbor’s property with the intention of claiming the easement, I suggest that you consult with an attorney acquainted with this aspect of real property law.

There is ample case law in your state (as elsewhere) to the effect that an easement may be terminated by abandonment. Which can occur by non-use when coupled with the clear intent to abandon the usage right. And that intent can be shown by express declarations (indicated here) and/or inferred by the circumstances.

There are other factors as well that can serve to deny the dominant estate usage of a recorded easement, e. g., adverse possession and equitable estoppel.

 

[nextwife]

Is the easement "of record"? If it is recorded, his title report should have shown the easment. His failure to have actually READ the information shown in his title report, or even worse, to have not bothered with title at all, would not be your problem. You need to know if the easement is properly documented and clearly defined.

I'd provide him a copy of the RECORDED document - you also need a survey to clearly establish where, "on the ground" the legal description stated in the easement actually sits.

 

[justalayman]

We bought a piece of land several years ago and last year we put a house on it.
The survey shows 2 easements for the property and both are shared easements.
Only one easement has a gravel driveway and culvert put in the road and that is the one we are using.
The other easement is not developed as a driveway and the owners living next to it have the land added to their property and thought it was their land over the years.

something sounds funky about this situation. OP states it is a shared easement so who is it shared with? Who is the servient tenant? In the statement above, OP is suggesting the neighbor is not the servient tenant but a co-dominant tenant due to the description of the neighbors believing it is their property.


If it is an easement shared with the neighbor with some other servient tenant owning the land, the neighbor has no control over the easement unless it is somehow listed as an exclusive easement to them.

I'm thinking the OP isn't all that clear on the situation themselves.

 

[wooddirk]

I just received an e/mail from the realtor who sold us the land many years ago.
He wrote me that the new buyers know about the driveway and are ok with me making one.
I had sent an similar e/mail as this post to him and also the title company and lawyer about the situation.
Apparently now it seems that the new owners from the house are friends with the realtor.
End good all good.
To answer a few questions.
Yes there is a survey and yes it is all documented and not only from the past but also in my new survey of my land what we did by buying our house.
The driveway is shared as the document states that this is the legal access for 3 lots adjacent to the easement.
The reason why it was never used is that all 3 lots made driveways on different spots instead.
Thank you so much for your help…it has been much appreciated.

 

[latigo]

I just received an e/mail from the realtor who sold us the land many years ago.
He wrote me that the new buyers know about the driveway and are ok with me making one.
I had sent an similar e/mail as this post to him and also the title company and lawyer about the situation.
Apparently now it seems that the new owners from the house are friends with the realtor.
End good all good.
To answer a few questions.
Yes there is a survey and yes it is all documented and not only from the past but also in my new survey of my land what we did by buying our house.
The driveway is shared as the document states that this is the legal access for 3 lots adjacent to the easement.
The reason why it was never used is that all 3 lots made driveways on different spots instead.
Thank you so much for your help…it has been much appreciated.

I'll tell you what.

The e-mail from the "realtor" along with 5 or 6 bucks will buy you a cafe latte at most Starbucks. But other than that, it is worthless. to you.

 

[wooddirk]

I'll tell you what.

The e-mail from the "realtor" along with 5 or 6 bucks will buy you a cafe latte at most Starbucks. But other than that, it is worthless. to you.

Not if it was in a string of e/mails and because of that also went to my lawyer and title company and you live in a very small town.I will start building my drive way whith a lot more confidence ...You have a nice Christmas.

 

[You Are Guilty]

That whooshing noise you hear is Latigo's point sailing above your head. Emails are not known to be the best form of a legally binding document - the sort of legally binding document one might desire when dealing with easments and other things running with land.

However, if you are comfortable that a random email or two is sufficient protection from all who might own that neighboring parcel in all eternity, then more power to you. RE lawyers need to eat too!

Good luck.

 

[wooddirk]

That whooshing noise you hear is Latigo's point sailing above your head. Emails are not known to be the best form of a legally binding document - the sort of legally binding document one might desire when dealing with easments and other things running with land.

However, if you are comfortable that a random email or two is sufficient protection from all who might own that neighboring parcel in all eternity, then more power to you. RE lawyers need to eat too!

Good luck.

I do have a legal document..the one given by the Tittle Company's lawyer at buying the land.I am following the first advice giver and take the risk now I have a convidence boost...