Test

[San Jose]

Exclusive easement

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

My property has a 5 foot exclusive easement that runs the entire length of one of the property lines. My neighbor owns the property that the easement is located, I am the holder of the easement.
My new neighbor removed the landscaping and poured concrete on about 1/3 the length of the easement.
It wasn't until this happened that I studied the property map and realized that the easement ran the entire length of the property line. That is when I realized that another 1/3 of the easement had already been concreted and fenced off before I purchased the property.
So now I only have 1/3 of my easement available to my use.
I don't know how to approach this problem. Would the title company that secured the title for my property when I purchased it be a good place to get help.
I don't know if I should approach the neighbor first or get professional help first.
Thanks for any help, advise.

 

[STEPHAN]

When was the purchase?

Was a survey done at that time?

 

[San Jose]

When was the purchase?

Was a survey done at that time?

2002. I don't think a survey was done. We did get the map and CCRs which spell out the exclusive easement details at time of purchase. I have to admit the first 1/3 easement intrusion got by me, I totally missed that at purchase.
Thanks

 

[LdiJ]

2002. I don't think a survey was done. We did get the map and CCRs which spell out the exclusive easement details at time of purchase. I have to admit the first 1/3 easement intrusion got by me, I totally missed that at purchase.
Thanks

What is the purpose of the 5' easement?

 

[San Jose]

What is the purpose of the 5' easement?

From the CCRs:
"Exclusive owners easements. Exclusive easements [as described on map] will be granted to adjoining lot owner, for landscape purposes, patio area and general enjoyment of the adjoining lot owner, their heirs, successors.....". The area within the easement shall be subject to the right of the declarant.... to enter upon the easement at any reasonable time during daylight hours, for the general maintenance, upkeep, and replacement of any utilities and drainage installation of the dwelling and other improvements of the property which is subject to said easement. All work should be done in a timely manor...... No attachments such as wires, trollies and plantings on sidewall shall be allowed on sidewall of the dwelling located on the lot upon which easement is located, nor shall sidewall be used as a surface for any sport."

I do not know what my rights are and I don't want to notify my neighbor until I know my rights, if any, or where I stand. But I also would like to know the language to use so that I don't create any drama or bad feelings if not needed. What would I call this? A violation? Trespassing? Infringement? Encroachment?

Thank you

 

[STEPHAN]

I still don't get it.

Do you have an easement on your neighbor’s property or does he have one on yours?

 

[San Jose]

I still don't get it.

Do you have an easement on your neighbor’s property or does he have one on yours?

Sorry about that. I am the dominant tenant. My property is the dominant estate.
My neighbor is the servient tenant, his property is the servient estate.
(Got these terms from Google, hope they are apply here)

The easement is on his property, the easement allows my use.

I have edited my first post to indicate my status on the easement.

Thank you

 

[LdiJ]

From the CCRs:
"Exclusive owners easements. Exclusive easements [as described on map] will be granted to adjoining lot owner, for landscape purposes, patio area and general enjoyment of the adjoining lot owner, their heirs, successors.....". The area within the easement shall be subject to the right of the declarant.... to enter upon the easement at any reasonable time during daylight hours, for the general maintenance, upkeep, and replacement of any utilities and drainage installation of the dwelling and other improvements of the property which is subject to said easement. All work should be done in a timely manor...... No attachments such as wires, trollies and plantings on sidewall shall be allowed on sidewall of the dwelling located on the lot upon which easement is located, nor shall sidewall be used as a surface for any sport."

I do not know what my rights are and I don't want to notify my neighbor until I know my rights, if any, or where I stand. But I also would like to know the language to use so that I don't create any drama or bad feelings if not needed. What would I call this? A violation? Trespassing? Infringement? Encroachment?

Thank you

I am still not entirely understanding the purpose of the easement. Did your property encroach upon the other and the easement was given in order to allow those encroachments to remain? In what way is the servient tenant infringing upon your landscape, patio area or general enjoyment?

 

[154NH773]

Although you say it is your easement on your neighbor's property, that seems unlikely. It appears likely that the property involved is common area owned by an association or builder, or an area on private property that has been reserved by the builder/association to allow others to landscape. You, as the adjoining owner may have rights to landscape some portion, and the association has the right to grant exclusive easements for that purpose, while retaining the right to enter to do maintenance, etc. It's really hard to figure out without reference to the cited plats and other documents that could spell it out a little better.

The verbage you quoted is not an easement to you, it is describing the rights of the declarant to grant such easements. Where is the grant of easement to you, and what does it say? It may be described on the referenced "map".

You should speak with the HOA to find out what rights have been granted to whom, and if a violation occurred.

I'm no expert on HOAs or CCRs, so I'll defer to anyone that has a better explanation.

 

[Dave1952]

Like the others I find this easement to be peculiar. Your neighbor is expected to pay property taxes on your patio, weird. Still, none of my business.
Since you do not want to communicate with your neighbor until you have an understanding of this situation you should quickly consult with a real estate attorney. You must not dawdle. I suspect that you will wish to remind your neighbor of this easement. You may wish to grant him limited permission or insist that he remove his concrete. This reminder should be friendly and verbal, followed by a business-like letter.