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I want grant of easement for retaining wall

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ChefMac95

Junior Member
What is the name of your state? NM

I want to establish a private easement for my retaining wall that extends into my neighbors' property. They are agreeable. My questions are these: what kinds of things need to be included in the document establishing the grant of easement? My house is up for sale, and I don't want to get stuck with eternal maintenance on the wall, but can I make maintenance of the wall be the responsibility of the future buyer of my house, and those that might buy it from them in the future? Could the easement agreement establish that? What do I need to include to protect my interests? What do my neighbors need to protect their interests? Most importantly, what am I actually asking to be granted with the easement: right-of-way, access for maintenance, watering and trimming of plants? How do I describe what I want?

Details:
I built an approximately 60 foot long split-face block retaining wall that extends a little less than 2 feet into my neighbor's property. He's fairly new, and I'd never talked to him about it. I got a letter from him and his wife telling me to remove the part of the wall that enchroached on his property. He also stated he wanted to get the issue resolved because my house is up for sale.

When I talked to him about this issue, I explained that, based on an understanding I had with the pervious owner, I extended the wall to provide better erosion control for both of our properties at the point in question. I told him I was in no way trying to claim that part of his property, I just thought it was a good thing to do for erosion control. He was OK with that. He just wanted to establish that the wall extended onto his property.

We agreed to establish a private easement. I've looked over grants of easement in the County Clerk's Office. I've looked at examples online, and I downloaded a form from an online supplier of legal document example forms to use as a starting point. I asked my neighbors to prepare a list of issues that he wants addressed in the agreement. When I've made the first draft, I'll go over it with my neighbor and his wife, make changes, and then submit it to a real estate attorney for review and rewriting in accepted legal format and wording. Then his attorney will review it. (I told them I'd pay that fee, too. Should I have agreed to that? I would prefer that he, his wife, and I meet with my attorney, with the understanding that my attorney is to prepare a document that protects the interests of all parties.)

Thanks!
 


seniorjudge

Senior Member
ChefMac95 said:
What is the name of your state? NM

I want to establish a private easement for my retaining wall that extends into my neighbors' property. They are agreeable. My questions are these: what kinds of things need to be included in the document establishing the grant of easement? My house is up for sale, and I don't want to get stuck with eternal maintenance on the wall, but can I make maintenance of the wall be the responsibility of the future buyer of my house, and those that might buy it from them in the future? Could the easement agreement establish that? What do I need to include to protect my interests? What do my neighbors need to protect their interests? Most importantly, what am I actually asking to be granted with the easement: right-of-way, access for maintenance, watering and trimming of plants? How do I describe what I want?

Details:
I built an approximately 60 foot long split-face block retaining wall that extends a little less than 2 feet into my neighbor's property. He's fairly new, and I'd never talked to him about it. I got a letter from him and his wife telling me to remove the part of the wall that enchroached on his property. He also stated he wanted to get the issue resolved because my house is up for sale.

When I talked to him about this issue, I explained that, based on an understanding I had with the pervious owner, I extended the wall to provide better erosion control for both of our properties at the point in question. I told him I was in no way trying to claim that part of his property, I just thought it was a good thing to do for erosion control. He was OK with that. He just wanted to establish that the wall extended onto his property.

We agreed to establish a private easement. I've looked over grants of easement in the County Clerk's Office. I've looked at examples online, and I downloaded a form from an online supplier of legal document example forms to use as a starting point. I asked my neighbors to prepare a list of issues that he wants addressed in the agreement. When I've made the first draft, I'll go over it with my neighbor and his wife, make changes, and then submit it to a real estate attorney for review and rewriting in accepted legal format and wording. Then his attorney will review it. (I told them I'd pay that fee, too. Should I have agreed to that? I would prefer that he, his wife, and I meet with my attorney, with the understanding that my attorney is to prepare a document that protects the interests of all parties.)

Thanks!
Q: My questions are these: what kinds of things need to be included in the document establishing the grant of easement?

A: You can include just about anything that is legal in the easement agreement. You and the neighbor need to come to an agreement on who is responsible for what, then YOU need to hire a lawyer for YOU to make sure your interests are protected to draw up the easement agreement.



Q: Then his attorney will review it. I told them I'd pay that fee, too. Should I have agreed to that?

A: That is entirely up to you.



I would prefer that he, his wife, and I meet with my attorney, with the understanding that my attorney is to prepare a document that protects the interests of all parties.

No attorney with any sense is going to represent both parties on opposite sides of an agreement like you are proposing.
 

justalayman

Senior Member
Wouldn't it be easier to draw up an agreement that allows the neighbor to claim ownership of the portion of wall encroaching on his property? That way if he should decide he wants it to go, he can remove it without as much hassle.

The thing is that although you stated to the neighbor you had no intent of trying to claim the property in question, an easement does make a claim to that property. Not ownership but it does become your property in many ways.

Then his attorney will review it. (I told them I'd pay that fee, too. Should I have agreed to that?
If I was the neighbor, I would require you pay any and all costs associated with this deal. After all it is your doing that caused it. The neighbor can still require you to remove the ecroachment anytime before an easement is granted. Rememeber, you are in effect asking him to give up at least some rights to this section of property.
 

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