Fence and property dispute

[grtkaren]

What is the name of your state (only U.S. law)? Michigan
I purchased our home all most 3 years ago, and since the day of closing have had nothing but problems with neighbor across the street and next door. On the day of closing they demanded to know what our intentions were with tennis court, they wanted it tore out, they also wanted the big tree at the end of the property taken down, as they deemed it too large, our leaves on the tree touched their leaves of their tree. We have a private drive for the 3 houses back here, they continously drove off the pavement onto my grass, creating ruts. They sent 2 letters in 1 year from attorneys telling us we could no longer use the private drive to access the remainder of the 180 feet beyond our home, but we would still be required to pay 1/3 of the maintence of this road. We tore out the tennis court, cost 5000.00, we took down the tree, cost 860.00, then we surveyed the property and installed split rail fence 6 inches inside of our property line. They are now demanding to remove the fence, they want to take over 5 feet of our property and get an permanent injunction to keep us from using the access road. They have yelled and screamed at me, threatened they will sue us until we have no money left. I do not have $40,000 to fight these people in court. No where on my title or deed does it indicate they own this private road, the coventants clearly state the private road is to be shared by the 3 houses. What am I to do. I am continously be harrassed by these peopleWhat is the name of your state (only U.S. law)?

 

[justalayman]

first, you obviously have the survey to prove where your lot lines are. that's good.

Don't know why you removed the tennis court and tree though.

the part I'm not sure about is this lane. Who owns the property it lies on? Do the users of the lane have an easement that allows their use? Is there any maintenance agreement for the lane?

 

[154NH773]

On the day of closing they demanded to know what our intentions were with tennis court, they wanted it tore out, they also wanted the big tree at the end of the property taken down, as they deemed it too large, our leaves on the tree touched their leaves of their tree. We have a private drive for the 3 houses back here, they continously drove off the pavement onto my grass, creating ruts. They sent 2 letters in 1 year from attorneys telling us we could no longer use the private drive to access the remainder of the 180 feet beyond our home, but we would still be required to pay 1/3 of the maintence of this road.

The question was already asked, but I'll ask again; Why did you tear out the tennis court on their demands? Who owns your property? Is it you or them?
It's hard to tell from your post, but it is "possible" that you have only been granted access to the road up to your property. Many easements are granted for "ingress and egress" and that only allows you to travel to and from your property. You will have to check the wording of the easement grant.
What reason do they give for demanding 5 feet of your property?
There seems to be more going on here than is being said in your post. How about a little more information.
Oh.. by the way... suing someone until they give up or run out of money is a common tactic, so be prepared.

 

[grtkaren]

The covenents from 1964 state the right away the actual 20 ft. road is for the 3 homes back here ours and the two neighbors. It states that all 3 people are to maintain the road and share the expense, during our 3 years, there has been no maintence of any sort, but in there suit there are stating we havent paid for any maintence, we have, we have paid to have it snow plowed several times. We removed the tennis court fencing, because of the constant complaints from across the street it was an eye sore, we left the actual asphalt. The big tree we removed, because of there complaints and in the event while we were in Florida something happened and the tree came down we didnt want to deal with them, it was just easier to remove the tree. The problem with the easement is the neighbors across the street somewhere along the line, eased out 6 feet into the private road and planted landscaping reducing the width of the easement, then they did paved the road but paved it outside of the boundaries of the actual road and pushed the boundaries over onto my property only in front of their driveway, so 22 feet of my 180 feet has pavement, when we put the fence up we clearly marked the lines, they are wanting to say they have maintained this area on my property for 10 years, now they want it deeded to them, plus they want us removed from the original covenants, that we can not use the road to drive down the 180 feet of my property. We own the property we purchased this property Oct 30, 2007

 

[Terminus]

Multiple Issues

With the age of the covenants....There is customarily a maintenance issue at some point. The problem is that the maintenance costs will be split, but older covenants infrequently detail the hows, who's, etc....This is a big issue I see everywhere...especially with a few lots like your situation involves. Usually I would recommend that the three homeowners get together...devise a yearly maintenance cost schedule, and set up an escrow account to cover those costs. Then each year everyone puts up their money to cover costs....it can be done informally...or very formally depending on the relationship you have with your neighbors.

The neighbors didn't reduce the width of the easement (it is defined as 20 feet), what they did was reduce access and use of the easement by planting landscaping. While I am sure it looks good, their actions have limited your use of the easement. They can't do that....and the boundaries haven't changed...just the location of the road. Not really a lot they can do about it without your authorization.

As others said...your covenant is more than likely for ingress and egress (and probably forgot utilities which is a no-no). If the easement runs the entire length of your property, traditionally the neighbor cannot define where you enter the property (if the easement is defined only to your driveway..then it would....but that doesn't appear to be your case). I would call your surveyor and talk with him...He should be giving you more insight into what is going on....then maybe a lawyer.

 

[154NH773]

Wow... your situation is very similiar to mine. Let me just say that your rights to the original right of way have not changed because they encroached upon the right of way. They are bulling you and threatning you, but only a court can change your deeded rights.
What I have done (my neighbor erected a statute on the right of way) is send a Certified Return Address Requested letter demanding that the obstructions placed in the right of way be moved. Give them a deadline.

What they are trying to do is have you give up your property for nothing, while your neighbor gains valuable property. Some nerve.

I was going to write something about negotiation, but then re-read your latest post and realized you are already in a suit. You need a GOOD land use lawyer right now. Do not hesitate. Gather all documents pertaining to any payments you have made and, any other things you may have done. Make sure you have dates recorded, and take photos of the encroachments now, before they may try and remove them.

You did not answer the question about who owns the actual property the right of way lies on. While it shouldn't make a lot of difference, it might help us understand their motivation.

 

[justalayman]

While it shouldn't make a lot of difference, it might help us understand their motivation.

that makes a LOT of difference. If it is on the OP's land, the OP has full use of the easement and can install borders (fence, ditch, anything )along the easement. If it isn't on the OP's property, OP cannot install borders.

If the OP is the servient tenant, the OP can enter and exit the easement anywhere they wish. Conversely, if OP is only a dominant tenant, OP is restricted to the area only included withing the easement.

 

[grtkaren]

follow up

No one owns the private road, easement, that we know of. The original sub division was established in 1964, at that time the covenants were written, very vague, all it states is the 3 owners back here all have access to the use of the private road, all 3 shall share in the maintence. We purchased our property all most 3 years ago, the courthouse does not have anything showing that anyone owns the private access. The problem lie's they like to park their car's in the access private road, thus forcing the 85 yr old woman at the end to swerve out to drive around their car's, down thru our lawn. Now that the fence has been installed, they can no longer park in the private road, they must park on their own property. We are not dealing with rational people here. They want to dictate and threaten, our welcome to the neightborhood was them accosting us the day we closed on the purchase, with demands of what they expected.

 

[justalayman]

No one owns the private road, easement, that we know of.

somebody owns it whether it be the government (public roads), one of the adjacent property owners (an easement to the others), or an association (private road owned by a governing entity specific to the housing group); somebody owns it. Land doesn't just "exist" without some owner.

but, with what you have said, the actual ownership may be irrelevant since it isn't the lane itself that appears to be the problem.

The problem lie's they like to park their car's in the access private road, thus forcing the 85 yr old woman at the end to swerve out to drive around their car's, down thru our lawn. Now that the fence has been installed, they can no longer park in the private road, they must park on their own property. We are not dealing with rational people here.

Unless they can make a case for a prescriptive easement (and the lady that has to go around the yahoos parked in the lane would be the one with the possible), leave the fence where it is. Unless the lady that has had to swerve into your drive has a problem with it, do your best to ignore the push neighbors.

as to you using the lane; until you determine the actual ownership and what legal rights you have, there isn't a lot I can say to that.

 

[154NH773]

No one owns the private road, easement, that we know of. The original sub division was established in 1964

Whoever created the subdivision may still be the owner. Find that person and get them to give you a deed. You may then have rights that trump everyone.

You stated that you were being sued.

but in there suit there are stating we havent paid for any maintence

Have you been served, or have you just received demand letters from their lawyer? They are totally different things.

justalayman

that makes a LOT of difference. If it is on the OP's land, the OP has full use of the easement and can install borders (fence, ditch, anything )along the easement. If it isn't on the OP's property, OP cannot install borders.

The OP had aready said he had a survey and placed the fence inside his boundry, so from his statement he didn't claim the ownership of the easement, which he repeated in his last post. I can only go by what he has said at the time. I did ask, as you did,; who owns the land? And I agree, someone must.

 

[Terminus]

Previous post about easement ownership

The previous poster made a good point...someone has to own fee title to the easement. Once again this is something your surveyor should be able to tell you....What happens a lot is that the original subdivider has every intention of conveying his ownership to the municipality, but that action never legally happens for many different reasons. I would track down the original subdivider of the property and have them quick claim all ownership they still possess in the easement to you if the easement has not been conveyed to another entity. This will in essence give you more control over the easement. This can be done by a quitclaim deed and other than attorney fees should be inexpensive other than time to track down the original owner.

 

[154NH773]

What happens a lot is that the original subdivider has every intention of conveying his ownership to the municipality, but that action never legally happens for many different reasons.

True; my right of way passes over the roads of a subdivision, and the creator of the sub held the roadway ownership for over 10 years before deeding it to a road association. One reason it didn't come to light is that the land containing the roads in a subdivision are not taxed (at least in my state), even though they may be privately owned.

You will have to do some research. Start with the town planning board and ask for the records of the subdivision approval. You can also do a search at the Register of Deeds. Your deed should reference the previous Book and Page of the previous owner's deed and so forth. Just keep going back in the deeds until you find the original owner of the subdivision, then see if you can locate them. It is really quite simple to do title searches, but if you are uncomfortable you can hire a title company to help. They are usually not that expensive if all they are doing is searching.

 

[grtkaren]

ownership of the easement

Okay I did my investigation today at the register of deeds office. The original owner of my home is the person that set up the sub division, he is now dead, but the easement was setup for my home and the two other homes to have access to our property. The actual easement is owned by the people who had there lawyer send us the letter, demanding we remove the fence, which is clearly 6" inside of our property. The letter states if the fence is not removed by this Thursday they will sue for a prescriptive easement for several feet of our property because they have used this additional area for several years, the 20 ft easement isnt enough for them, they want my land as well at least 5 ft of it and 180 ft in length. All of the original documentation states we have the right to use this easement. I am not removing the fence, over my dead body.

 

[justalayman]

several years isn't enough. It is 15 years in Michigan.

as well, if they have an actual claim, it is only for the land actually used. That means if the remained on the true easement all but for a few areas, those few areas are the only areas the would have a claim for.

 

[154NH773]

I am not removing the fence, over my dead body

I think that is the correct response.

However, if this issue goes to court I would highly suggest you get a lawyer to represent you. Courts will often defer to an attorney over a pro se individual (a non-lawyer).

In this type of case the court has great discretion to do what it wants, and even if the court doesn't follow established law correctly you will have to appeal, which can be costly. It is well worth having a GOOD lawyer represent you against another lawyer.