Easement rights for dominant tenement when not defined in deed?

[Tuey_User]

What is the name of your state (only U.S. law)? MA
I am the dominant tenement of a right to pass over easement. This is a piece of land is only about 25% of our driveway. The Servient owner of the land has their own driveway and does not own enough of this land to even cross over a vehicle on our driveway. We have paved the land and maintained it for 20 years. Last year a new servient owner moved in, took down the fence that separates their side yard with the land that makes up about 25% of our driveway. It is triangle piece of land. They put up a basketball hoop that while sits on their side yard, requires the kids to play on an active driveway that can only be used by our home. We told them that we are not happy with this and explained that we were very concerned with children playing on an active driveway that was not theirs. Their response was to make false accusations and call the police on us 3 times. Once accusing me of driving at unsafe speeds trying to run over 7 boys even though I had witnesses to dispute this. We spoke with the police department and believe that the police harassment will no longer be an issue. We have also filed a no trespass notice on them and posted signs so that when the balls hit our cars and land on our property, we can file charges against them and their guests. We only did this after the third time they called the police. Since winter is upon us, it's quiet for now but with spring around the corner, I'm wondering what we can do.

My insurance company says that I can be held responsible if a child is injured on this land because we maintain it but because we don't own it, we can't insure it.

I have two questions:

1. Do they have the right as the servient owner to use this land as a playing area. The easement is a right to pass over easement but no other definition of use was provided nor does it discuss who maintains this land (but the owner of our home has always done so for the last 50 years.)

2. Do I have the legal right to install speed bumps on easement since we have maintained it for the last 20 years. (Paving, snow blowing, cleaning)

 

[justalayman]

My insurance company says that I can be held responsible if a child is injured on this land because we maintain it but because we don't own it, we can't insure it.

as far as liability insurance goes, you do not insure a specific parcel of land. You insure yourself for liabilities you incur. They can be related to a particular piece of land but you can also purchase general liability insurance as well.

1. Do they have the right as the servient owner to use this land as a playing area. The easement is a right to pass over easement but no other definition of use was provided nor does it discuss who maintains this land (but the owner of our home has always done so for the last 50 years.)

they can use their property any way they choose as long as they do not impede your rights. Since it appears there is no defined use, it would have to go back to the original grantor and their intent. Most likely the use is for nothing more than egress and ingress to your property. That means that is all you can do on the easement. That is not limiting of the servient tenant though as being their land, they can do anything they want to do on it.


generally maintenance of easements is the liability of the users of the easement, or if multiple users, divided by the number of households served by the easement.

2. Do I have the legal right to install speed bumps on easement since we have maintained it for the last 20 years. (Paving, snow blowing, cleaning)

unlikely. You cannot change the status quo of the property without permission from the servient tenant. If it is a dirt lane, it remains a dirt lane. If it is gravel, it remains gravel. If it is paved, it remains paved. Improvements are not allowed under maintenance.

 

[154NH773]

We have paved the land and maintained it for 20 years.

I agree with Justalayman, except that since you have paved the roadway, and have maintained it, you probably can continue maintain the pavement, and even re-pave if need be.

It is not your land, it belongs to the neighbor. He can do anything he wants as long as he doesn't impede your ingress or egress. You will have to use caution in driving through his section if children are playing, just as you would on a public street.

Why would you want to install speed bumps if you are the only one using the driveway? Maybe to remind you not to run over his kids?

 

[Tuey_User]

I agree with Justalayman, except that since you have paved the roadway, and have maintained it, you probably can continue maintain the pavement, and even re-pave if need be.

It is not your land, it belongs to the neighbor. He can do anything he wants as long as he doesn't impede your ingress or egress. You will have to use caution in driving through his section if children are playing, just as you would on a public street.

Why would you want to install speed bumps if you are the only one using the driveway? Maybe to remind you not to run over his kids?

I would install speed bumps because I don't want any visitors, my daughter or her friends (new drivers) to hit the kids. You have to turn into the driveway from a busy street with no viability when you turn.

 

[154NH773]

I don't see how the servient tenant could complain about speed bumps, since they don't use the roadway.

 

[Tuey_User]

I don't see how the servient tenant could complain about speed bumps, since they don't use the roadway.

Yeah but they use the same area (not all of it their land) to play basketball so the speedbumps would interfere with their playing ball and hockey.

And yes, that is part of my motivation too. The balls hit my cars (on my land) break my plants (I have put up higher fences around the gardens). We even offered to have them put the basketball hoop on a back driveway we own behind the house but they were not interested. There's also a full city basketball court 2 blocks away.

 

[justalayman]

I don't see how the servient tenant could complain about speed bumps, since they don't use the roadway.

Because it is an alteration of the property. While it wouldn't affect the servient tenant because they don't use the drive that really makes no difference. Just as they could not (rightfully) improve the drive without the servient tenants permission, they could not install speed bumps without the servient tenants permission.

 

[154NH773]

I respectfully disagree. The speed bumps are only an extension of the changes already done to the property (building a road and then paving it. The speed bumps don't alter the road in a way that has any effect on the servient tenant.
While it would ultimately be up to a court to decide, I don 't think the property owner would waste his money trying to prevent speed bumps from being installed... But you never know.

 

[Zigner]

I respectfully disagree. The speed bumps are only an extension of the changes already done to the property (building a road and then paving it. The speed bumps don't alter the road in a way that has any effect on the servient tenant.
While it would ultimately be up to a court to decide, I don 't think the property owner would waste his money trying to prevent speed bumps from being installed... But you never know.

Speed bumps can cause damage to vehicles, increase liability due to pedestrians, and impede the flow of emergency services. They certainly are not merely an extension of the creation of a paved road.

 

[justalayman]

I respectfully disagree. The speed bumps are only an extension of the changes already done to the property (building a road and then paving it. .

really? So you wouldn't have a problem with your state highway department putting speed bumps on every road?

The speed bumps don't alter the road in a way that has any effect on the servient tenant.

sure they do. It is the servient tenants land so anything on the servient tenants land affects him.





the paving itself was not allowed but since it is in and has been for so long, as you stated, OP would be allowed to maintain the paved drive. Not seeing a court allowing speed bumps as they serve no valid purpose. In fact, OP has stated his ulterior motive is to cause the easement to be unusable by the servient tenants kids playing basketball.

 

[154NH773]

"In fact, OP has stated his ulterior motive is to cause the easement to be unusable by the servient tenants kids playing basketball."

Somehow I missed that. You are correct that speed bumps added for that reason would probably not be allowed, as they do affect the servient tenant's use of his property.

He also said it was to keep his visitors from hitting the kids because of "visibility" when entering the street, so he should take steps to prevent that. Perhaps a "Children Playing" sign at the entrance.

A speed bump at the entrance, that didn't affect their ability to play on their property, I still think would be an allowable (by a court), and reasonable, safety measure.

 

[154NH773]

"Speed bumps can cause damage to vehicles, increase liability due to pedestrians, and impede the flow of emergency services. They certainly are not merely an extension of the creation of a paved road."

Since it is only the OP and his visitors using the "driveway" I think is is a reasonable extension of his care, safety, and maintenance to install speed bumps, except as noted above.