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  1. #1
    Milomite is offline Junior Member
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    Oregon Easement Rights

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

    I just found out that there is an ingress/egress easement on my property. My lot is basically square, and the easement runs along the entire south side of my property. The easement is for 12 ft deep along the entire 78.18 ft of the south side of the lot...ie 938.16 sq ft of my property. My neighbor on the south side of my property sold to a developer who is now subdividing the existing lot into 3 new lots. He now needs to expand what used to be a paved drive way, into a public road and he is telling me he needs to build a sidewalk on or against the easement on my property. I currently have a fence running along the length of the south side of my property (on top of the easement), and the developer wants it moved. Our first interaction was when the developer told me I had to move the ence myself because it was on his property. I called BS and had him bring in surveyors who sure enough showed that the fence is on my property. Not that this has been established, I want to know what my rights are.

    Who is financially responsible for moving my fence that sits on the easement?

    Are my rights different if the developer just needs the fence removed so he can build the sidewalk, vs if he actually wants to PLACE the sidewalk on my property?

    The developer told me that if he got the county involved, they would make me move my fence in so that it didn't sit on the easement WHATSOEVER. Is this true?

    He also said that the county would require that there is an unobstructed view of his new road, and that they might make my take down my fence altogether!

    Any help/advice that anyone can offer would be greatly appreciated. Even hyperlinks to documentation on the web would be beneficial.

    Thanks in advance!What is the name of your state (only U.S. law)?
  2. #2
    FarmerJ is offline Senior Member
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    You do realise that splitting one parcel into 3 will overburden this easement. BTW your city/county likely will stay out of it and do nothing! Use the links above to speak to a real estate atty about your options. ALSO go see your city /county zoning dept and learn exactly what they are requiring of the builder in order to split the lot into 3 parcels . Fair odds are what they will tell you is way different that what he will tell you . Also you want to learn how wide of a road they will want for 3 homes, I bet its gonna be wider than 12 ft. if thats the case just where is he planing on building the road ? If you use this easement also as your only access to your property you can speak to a atty about negotiating a whole new agreement that would inc a maint agreement for all partys to share in the cost of repairs etc list goes on.
  3. #3
    Milomite is offline Junior Member
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    Thanks FarmerJ. I will try and contact my county zoning dept to understand what they are requiring of the developer. As far overburdening the easement goes...the parcel being developed included a 25x100 ft drive way with a 5 foot easement on the south side, and a 12 foot easement on the north side (my side). The developer already had the owner on the south side move his fence five feet on his own dime, and now he is coming after some of my 12 ft. I've been meaning to talk to my neighbor on the south side, but language barriers have pursuaded me so far.

    Have you ever heard of a law requiring an unobstructed view to a public road? The developer was being passive /aggressive and telling me he didn't want to get the county involved because they'd enforce the "unobstructed view"? I know you said the county will most likely not get involved...but just wondering if that "unobstructed view" claim was BS.

    Thanks for your help!
  4. #4
    seniorjudge is offline Senior Member
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    There are such things as "view easements" (especially in your state).

    Of course, none of us here know if that is what applies in your case.
    There are two rules for success:

    (1) Never tell everything you know.
  5. #5
    justalayman is offline Senior Member
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    He also said that the county would require that there is an unobstructed view of his new road, and that they might make my take down my fence altogether!
    while there is such a thing as an view easement, I truly doubt they would be concerned about a view to the road. On top of that, the county is not who would enforce such an easement. It would have to go to court.

    You are misunderstanding what an easement is and who can use it. Step back to before the property sale. The dominant tenant (that is the guy that the easement is granted to benefit) would be able to use that 12 feet on your land (you are the servient tenant). The dominant tenant can ask the courts to require you to move your fence and at your cost. You could very well end up paying the court costs as well. You have no right to have your fence on the easement. None.

    So, now we come to the current situation. The new owner of the dominant tenement has the right to demand you remove your fence at your expense.

    So, what can you do?

    It depends on what the easement grant states the easement was granted for. If it was simply ingress and egress to a single parcel, then allowing 3 parcels to use the easement would surely be overburdening the easement. That means, it would be used by more traffic than was intended. This is the only argument you have to prevent the use for ingress and egress. Typically, the dominant tenant cannot make alterations (including improvements which would include a sidewalk) without your permission unless the easement grant allowed it.

    So, you need to find who and when the easement was granted and find the original grant so as to discover what it states, exactly. Then, you need to make a determination if the intended use is allowed per the grant. If it is, bend over and take it because fighting it would only result in you spending money and still losing. If it is not allowed, let it be known to the developer that you do not intend to allow the use he is attempting. Be sure to speak with the agency that deal with any building or roadwork in your area so you can be sure to attend any meetings that would be discussing this and letting it be known to them that you do not approve of the use and will take necessary steps to prevent it.

    If the developer takes any physical action that is not allowed, you need to get into court and seek an injunction to stop the work. Then you need to sue the guy to restore your property.

    a local attorney that deal with real estate would definitely be a good idea.
  6. #6
    Milomite is offline Junior Member
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    I have the original easement agreement and it states the following.

    "The second party shall have all rights of ingress and egress to and from said real estate (including the right from time to time, except as hereinafter provided, to cut, trim and remove trees, brush, overhanging branches and other obstructions) necessary for the second party's use, enjoyment operation and maintenance of the easement hereby granted and all rights and privileges incident thereto.

    Except as the the rights herein granted, the first party shall have the full use and control of the above described real estates."

    The dominant tenant already has a 25ft wide chunk of land to be used as a road, and they've expanded it to 30 ft by enforcing the easement on the southside of the road.

    i just left a message at the county zoning dept asking for access to the zoning plans for the development so that I can understand HOW WIDE they are asking him to make the road/sidewalks.

    Thanks for the honest advice!
  7. #7
    justalayman is offline Senior Member
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    from what you have posted, he cannot install a sidewalk or pave it (if it isn;t already) he can maintain, not improve.

    additionally, this division would be extending the easement rights to 3rd, 4th and 5th parties. THe easement grant does not allow for that. It was granted to one party (2nd party) and that is the only party that is allowed rights to the easement. Of course that does allow visitors and such to the 2nd party but it does not allow the easment rights to be extended to additional parties.

    tell him to fuhgetaboutit.


    btw; you have full right to use the easement as well if you wish.
  8. #8
    154NH773 is offline Member
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    The advice you have been given is good, but I'd hesitate to say the easement couldn't be interpreted to allow additional parties. The builder would have to take you to court, but the court may grant the additional parties access if there is no other reasonable access.

    If at the time of the easement grant it would have been possible to divide the other property into 3 lots, then the court could say there is no additional burden when compared to what was possible at the time of the grant. If the subdivision would not have been possible under the regulations existing at the time of the easement grant, then you would have a better chance of blocking the additional two lots from using the easement.

    You do not have a right to block the easement in any way, so if its your fence on the easement you better move it.

    I would agree that the sidewalk is inappropiate, even on the easement, because it would be on your land and it would block you from using that part of the easement unecessarily.

    Remember, an easement has value. Don't give up any rights you don't have to without being compensated.
  9. #9
    Smoothie93230 is offline Junior Member
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    A couple of things to keep in mind are that easements are usually created out of necessity for a specific use by agreement between adjoining land owners.
    What it sounds like to me is that when the 3 parcels were created, the requirements of the subdivision were to provide access for all 3 lots by means of a 25 foot strip. You could argue that the necessity for the easement is no longer needed.
    Remember, you still own the land! The easement only allows for a specific use within that easement. If the easement was created for ingress and egress then that is the only purpose it can be used for. Let’s say for example that an easement was created between you and your neighbor for the purpose of “construction and maintenance of an underground irrigation line”. Then at a later date your neighbor wants to use the easement for the construction and maintenance of an underground gas line. It would be up to you to allow for that use by granting another easement for that specific purpose. Just because there is an easement does not give someone else the "Right" to use that easement for anything other than what it was specifically created for.
    The “right” to use an easement for anything other than what it was created for is not allowed.
    If someone tries to move or remove your fence for any reason without your permission, regardless of where it is built. DO WHATEVER YOU NEED TO DO TO STOP THEM!! I cannot stress the importance of this enough. If this happens, call the sheriff or police department. They will more than likely tell you that it is a civil matter that needs to be addressed through the court system. Immediately inform the police that someone is destroying your property and you are going to use any means to stop them including physical force. At that point it is no longer a civil matter. Trust me, the police or sheriff will come out and put a stop to the disturbance. If you allow it to happen then the burden is on you to prove that they are infringing on your rights. If you put a stop to it then the responsibility is on them to prove there rights.
    This is what I would do and it’s just my opinion. Hire an attorney with a good background in boundary law and a professional land surveyor to help protect your rights to the use of your land.
    Another option is negotiate with the developer for the sale of the additional land needed for his project. Maybe you could make a little cash instead of spending your life savings fighting with your neighbor.
    Good luck.

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