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Encroachment upon easement

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matisse01

Junior Member
What is the name of your state (only U.S. law)? New York

My mother has lived in her house for 20 years and in constant activity of growing a green privacy fence which was a beautiful and lush wall of garden (of which we have a picture). The landlord and owner of the multi family unit next door, which was not built yet when my mother moved in, has tore up our legal easement on which my mothers garden was growing. In one afternoon he obliterated a 20 year old garden by taking out all the trees and digging out the roots and cemented over it right up to our fence. The backyard now is completely bare with dying leftovers and the privacy is non existent. She now sees the street, the brick wall of the building next door and their small parking lot in the back. And, he wants to make his strip of alley along with our easement, a driveway.

Needless to say she is emotionally extremely distressed, is losing sleep and feels deeply, deeply hurt.

We have a survey of the house which maps our easement and a legal document between the previous owner of her house the previous owner of the land next door, which states the the easement belongs to our property and the neighbor may not use it for any public purposes. And, that this easement stays until the year 2190.

My questions are:

1) He is willing to build a privacy fence there but my mother wants him to rip out the cement and replace the greenery AND build a privacy fence.
a) is that a reasonable request?
b) if he doesn't agree to all that should we sue him?
c) can we sue for damages and emotional distress to an elderly person?
d) should we try to do it out of court or should this really be addressed legally?

I would greatly appreciate any help.
 
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HuAi

Member
You post needs to be clarified a bit. You state the garden was on an easement.

1) Who is the servient tenant (owner of land on which easement lies) and who is the dominant tenant (for whom was the easement created)?
2) Please post the exact verbiage of the easement from your mother's deed or county recorder's office.
 

matisse01

Junior Member
Thank you for your reply: here is the Declaration of Easement, verbatim:

this agreement witnesseth, that the declarant, (previous owner of property next door to us), for the benefit of itself, its successors, assigns, and tenants in consideration of the premises and for the purpose of carrying out the intention above set forth does hereby make known, publish and declare, convenant and agree as follows:

that the strip of land herinafter described shall be kept open at all times free from all obstructions for the purpose of a right of way for egress. It being further understood that an easement over the said strip shall pass to (owner from whom we purchased the house) and his successors and assigns. Nothing herein contained shall be construed to be a dedication of said strip of land to the use of the public generally.

...

That the easement shall be maintained at the sole expense of (our previous owner) and his successors and assigns. This easement shall cease on January 1st, 2190.


Does this clarify things better? Much, much appreciated is your time.
 

Zigner

Senior Member, Non-Attorney
The easement did not provide for a garden to be planted there.
The easement SEEMS to provide for a driveway...
 

matisse01

Junior Member
but there is our fence then the 3' easement and then there was his fence. and the easement in between those two fences where wild trees and shrubs have been growing since before we moved in. he tore down his fence and all the trees on the easement and cemented the easement. there was only a narrow alleyway on his side of his fence now that he encroached upon the easement, now it suits a driveway for public use.
 

Zigner

Senior Member, Non-Attorney
but there is our fence then the 3' easement and then there was his fence. and the easement in between those two fences where wild trees and shrubs have been growing since before we moved in. he tore down his fence and all the trees on the easement and cemented the easement. there was only a narrow alleyway on his side of his fence now that he encroached upon the easement, now it suits a driveway for public use.
Do you live next to a business?
 

HuAi

Member
It seems that the neighbor brought the easement into conformance at his expense if anything - previously it was obstructed by shrubs / garden / fence, etc, now its open for egress.

The easement doesnt appear to be exclusive for your use, so the other property owner may also use it for egress/ingress as long as he doesn't park on the drive or obstruct your egress in any other way.
 

swrdmbo

Member
he is not using it for public use. He is using it for egress and ingress for his tenants. He is perfectly within his rights.

I do think he could have let your mother know he was going to do this, that would have been the neighborly thing to do, but that has nothing to do with the legality of what he did.

He didn't have to offer to put up a fence..I think he was trying to be nice.
 

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