maintenance easement and fence

[maggieco2008]

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

I own a property with an L-shaped fence on it. I have an easement from the property next door, and the fence is partially on the easement area and partially on my own property.

For ten feet, the fence runs just along the easement boundary, but it is on my side by about 2 inches. Another section, perpendicular to the first, is also ten feet. The first 3 feet of this section are located within the easement, and the last 7 feet are located entirely on my property.

I'm wondering who is responsible for maintaining the fence. It is old and needs replacing. I'm also wondering if I'm allowed to extend the one section by an extra 3 feet along the easement boundary.

Here's the verbiage from the grant of easement (which is permanent for both properties):

1. Description of the easement:

… a perpetual, exclusive easement over and upon the adjacent lot. This easement is granted to … for the free, exclusive and uninterrupted right and privilege to use and occupy for recreational purposes, including the right and privilege to improve and maintain such easement with landscaping and recreational facilities…

2. Terms, provisions, conditions and covenants:

--The owner of the lot, to which an easement is added to and made appurtenant, shall landscape and maintain the easement in a clean and orderly manner, at that owner’s sole cost and expense.

--The owner of a lot from which an easement was reserved shall have the right to ingress and egress at all times over and upon an easement for the purpose of maintaining and repairing a lot and the improvements situate thereon, provided that any such entry shall be made with minimum inconvenience to the recipient of an easement as practical…

--Grantor has placed a low level fence between the building erected on Grantee&#8217;s Lot and buildings on contiguous lots, and although this fence must be properly maintained <<by whom??>>, Grantee shall not place another fence within 10 feet of this fence and shall not change the existing height, location, or general appearance of this fence.

From the last part, it sounds to me as though the Grantor (my neighbor) has "placed the fence," and therefore I would think the Grantor would be responsible for maintaining and/or replacing it. This would set up a strange situation as obviously then my neighbor would be responsible for maintaining a portion of the fence and I'd be responsible only for maintaining the 7 feet that are entirely on my property.

Thanks for any insights!

 

[154NH773]

Do you know for a fact that the fence in question was placed there by the grantor?
It is odd that most of the fence is on your property.
I would say that you should probably maintain the fence, as the easement allows you to, despite the fact that 3 feet may be the grantor's responsibility if the grantor originally placed it there.

 

[maggieco2008]

Thank you for your reply, 154NH.

If you look below, you'll see that the ++ signs represent the amount of fence that's in the easement area, and the ___ shows the fence that's completely within my property.

Your comment got me thinking. The fencing is all original, from 1985. So the construction company placed it there when the neighborhood was developed.

One way of looking at the last bit of the Terms and Provisions part is this:

"Although this fence must be properly maintained, Grantee shall not place another fence within 10 feet of this fence and shall not change the existing height, location, or general appearance of this fence."

When I look at it this way, it seems to imply that maintenance of the fence is up to the Grantee (me).

But then there's part b:

The owner of a lot from which an easement was reserved shall have the right to ingress and egress at all times over and upon an easement for the purpose of maintaining and repairing a lot and the improvements situate thereon...



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+ + + ___________________



+++ means that the fence is within the easement

___ means that the fence is totally on my property

 

[154NH773]

Who is the servient owner of the easement? What are you trying to accomplish?

The written description of the easement doesn't jive with your diagram, but never the less, the language of the easement is somewhat ambiguous, and therefore may have to be interpreted by a court.

The question is; who would object if you did what you want to? Or; are you trying to get someone else to replace the fence?

 

[maggieco2008]

I searched the web for information on easements, and I found a couple of statements that helped interpret the ambiguous part of my written easement.

1. If the easement does not specifically say that the Grantor has to maintain it, then it is assumed that the Grantee has to maintain it.

2. If you are using the property and the Grantor is not, generally then it is the responsibility of the Grantee (me) to maintain it.

So basically it is assumed that I have the right and the responsibility to maintain the fence, since the easement wording does not specifically say that the Grantor (my neighbor) must maintain the fence.

I wanted to know who's responsible for several reasons. If I replace the fence, can I ask my neighbor to pay for a portion of it? Can he have it replaced and send me a bill? Am I allowed to extend the fence?

The answer is I have to replace it and pay for it, and I'm not allowed to extend it.

 

[justalayman]

--Grantor has placed a low level fence between the building erected on Grantee’s Lot and buildings on contiguous lots, and although this fence must be properly maintained <<by whom??>>, Grantee shall not place another fence within 10 feet of this fence and shall not change the existing height, location, or general appearance of this fence.

it sounds like the intent was for the grantee to maintain the fence but it's obviously not clear.

I wanted to know who's responsible for several reasons. If I replace the fence, can I ask my neighbor to pay for a portion of it? Can he have it replaced and send me a bill? Am I allowed to extend the fence?

you can ask but they have no obligation to pay a penny. As I read it, he cannot have it replaced and bill you either though. It says it must be maintained and from how I read it, that is your obligation. It does not allow for you to replace the fence either. It says it must be maintained, that's it.

and no, it is absolutely clear you cannot extend the fence, unless you are speaking of the new section being on your property. That would be precluded in the "shall not place another fence" section. If it is on your own property, you can do it though as the easement grant cannot control what you do on your property.