Easement Encroachment

[AmyR]

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

Part of my barn appears to be on the property of another. I received a letter from a person claiming to have a right of way easement on the other persons property. He wants the barn removed. It extends 5 or 6 feet over the alleged line. Hard to believe it would interfere w/ any right of way. It is open field/woods and has no driveway, trail or path. My question is does he have the right or ability to enforce the demand, or must it come from the property owner himself?

[traveler2009]

It's been a long time since I've thought about easements (law school), but I seem to remember that owner of the right to the easement can enforce it. The property owner does not. Think of a utility easement that a utility company might have over some private property. If someone blocks that easement, the company can come in and get the hindrance removed without involving the property owner.

If I remember correctly, the other party can come in and remove the barn if you refuse to. However, since there's plenty of room around the barn, you may be able to ask a court to modify the easement, so you can keep your barn and this other party can have their way around it. Of course, this all depends on whether the property owner agrees to a modification.

But, better get someone else in here. This is just off the top of my head and, again, I haven't thought about this sort of thing for many, many years.

[drewguy]

In this instance, either the property owner or the easement holder could demand removal of your barn. The property owner because you've built on his land and the easement holder because you're limiting his use of the easement (I assume).

Bear in mind that "moving" the easement would require the consent of the property owner over whose property it passes. So it's not just you and the easement holder involved. All three of you should discuss ways to work it out, but if your barn is in fact blocking the easement in a meaningful way, you're going to have to move it . . .

. . . unless you're able to establish adverse possession of some sort. But that's for another thread.

[AmyR]

Thanks guys. I've got to do a little research into the easement to see exactly what and where it is, and who actually has the easement if any. I've been here for years and nobody has used the property in that time. I don't know if they plan to actually use it, or if they are just trying to preempt a possible adverse possession claim. Once I get my ducks in a row I'll try talking with the guy who claims to have an easement, see what he is trying to accomplish, and see what we can work out. I have less than zero interest in running up a bunch of legal bills. I'm sure it would cost less to demolish the barn and build a new one than to spend a couple of years fighting about it.

[AmyR]

The plot thickens! After going through the previous deeds for my property and the other guys it appears that I share the same easement as the other guy.

Let's call him Jones.

The land owner behind me is Smith. Smiths deed has the easment recorded from prior owner

My property owner history

Amy R
Roberts
Johnson

Smiths deed grants Jones an easement that runs parallel to my property that starts at my property line and is 40 feet wide.

It also grants the same easement to Johnson, forever, w/ successors or assigns. Johnson sells to Roberts (no mention of easement, though it is recorded on Johnsons deed) who subdivides and sells to me.

I think that gives me the same right to the easement, as well as the others in the subdivision, especially the ones whose property lines are adjacent to the easement. Does that seem right. We have been using it for the past 6-8years

[justalayman]

was the easement in force before the barn was built? How long has the easement been an easement? How long has the barn been a barn?

how was the encroachment discovered? Has there ever been a survey that showed the barn not an encroachment?

It also grants the same easement to Johnson, forever, w/ successors or assigns. Johnson sells to Roberts (no mention of easement, though it is recorded on Johnsons deed) who subdivides and sells to me.

try to explain this clearer and lay it out the best you can. you have a lot going on there and it gets confusing quite quickly.

I think that gives me the same right to the easement, as well as the others in the subdivision, especially the ones whose property lines are adjacent to the easement. Does that seem right. We have been using it for the past 6-8years

unless there is a grant giving you rights to the easement, you have no rights to the easement. Unless you have exclusive rights to the easement, the servient tenant can assign rights to use the easement to whomever he wants to.

did that answer your last couple of questions? If not, rephrase and hit it again.

[AmyR]

Originally Posted by justalayman

was the easement in force before the barn was built? How long has the easement been an easement? How long has the barn been a barn?

how was the encroachment discovered? Has there ever been a survey that showed the barn not an encroachment?


try to explain this clearer and lay it out the best you can. you have a lot going on there and it gets confusing quite quickly.

unless there is a grant giving you rights to the easement, you have no rights to the easement. Unless you have exclusive rights to the easement, the servient tenant can assign rights to use the easement to whomever he wants to.

did that answer your last couple of questions? If not, rephrase and hit it again.

It was in force before it was built. The easement appears to go back 20-30 years. The encroachment was discovered recently on a survey. There has never been a survey that shows it wasn't an encroachment. The barn has been there at least 6 years.


The deeded easement was given to a previous owner of my property and it said successor or assigns. Wouldn't I be a successor as the subsequent owner of the property?

"The transferability of easements must also be considered when undertaking a real estate transaction. An easement's transferability depends on its nature (i.e. whether it is appurtenant or in gross). In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But, the document transferring the dominant estate may expressly provide that the easement shall not pass with the land."

[154NH773]

The deeded easement was given to a previous owner of my property and it said successor or assigns. Wouldn't I be a successor as the subsequent owner of the property?

Yes, from the wording you quote the easement is appurtanent to your property (it runs with the land).

Whether that allows you to retain your barn in the easement depends on the wording and uses allowed by the easement grant. If it just allows ingress and egress, then your barn may have to be removed.

You are correct in trying to resolve this between the parties, however; make sure that any agreement is in writing and recorded.

[drewguy]

Originally Posted by 154NH773

Whether that allows you to retain your barn in the easement depends on the wording and uses allowed by the easement grant. If it just allows ingress and egress, then your barn may have to be removed.

Yes. The OP's update post is a bit unclear but it sounds like the barn encroaches on someone else's property. However, the encroachment is onto an easement of some sort. So there are two possible problems. First, the easement doesn't allow the encroachment at all (likely). Second, the encroachment may also interfere with the use of the easement (egress/ingress).

Given that there's an easement it may make it easier to resolve since it's not as if the landowner can use that property for something else (unless it's consistent with terms of easement).

[justalayman]

the biggest problem I see is the barn was placed there well after the easement had been created. That is simply not acceptable and regardless of the % of encroachment onto the easement, should be moved.

I do not see any way around this unless all of the involved parties would simply agree to allow the barn.

[drewguy]

Originally Posted by justalayman

the biggest problem I see is the barn was placed there well after the easement had been created. That is simply not acceptable and regardless of the % of encroachment onto the easement, should be moved.

I do not see any way around this unless all of the involved parties would simply agree to allow the barn.

How would the timing matter? If the parties agreed now to an easement allowing the barn in its current location, then that would solve the problem. So why couldn't an easement agreed to after the erection of the barn have solved the problem years ago, if in fact the terms of the easement allowed it (which seem unlikely, but the point being about the timing). Any claim for trespass has long been untimely if the easement in fact had "cured" it.

[justalayman]

did you not read the last sentence of my post?

and short of that, the timing would kill the OP's claim of any sort since the easement was in existence long before the barn was built. It should never have been allowed to be built where it is.

[drewguy]

I wasn't taking issue with the last sentence of your post.

The fact that something was built where it shouldn't have been allowed to be built isn't really helpful, because it doesn't answer the question of "what to do now". Indeed, adverse possession is one such answer other than "move the barn." Not saying it applies here, but the timing point you make doesn't change anything so far as I can tell.

[justalayman]

Originally Posted by drewguy

I wasn't taking issue with the last sentence of your post.

The fact that something was built where it shouldn't have been allowed to be built isn't really helpful, because it doesn't answer the question of "what to do now". Indeed, adverse possession is one such answer other than "move the barn." Not saying it applies here, but the timing point you make doesn't change anything so far as I can tell.

I was trying to point out that the last sentence in my post said essentially what you were. For the barn to stay, all involved would have to agree to allow the encroachment to stay.

The fact that something was built where it shouldn't have been allowed to be built isn't really helpful, because it doesn't answer the question of "what to do now".

actually it does. Since there was never a right to build there and the builder made the mistake, nobody else should suffer so you move the barn. I know it sounds extreme but that is what should be done.

and no, adverse possession would definately not apply, especially is OP had use of the easement.

the timing is important simply because; the easement was there first. It is not like the barn was there and the easement created with the barn in the easement. A later action placed the barn in the easement. It was illegal at the time, it is illegal now, it needs to be remedied.