• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Easement

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

G

Guard

Guest
What is the name of your state?Georgia Boy
Facts: I have a 50-foot easement for ingress/egress to land-locked property on which the property owner is encroaching by erecting fences and a building. I can access my property but wish to improve my access which will involve the total 50-feet of easement and require the landowner to remove all obstructions/encroachments.
Question: Am I within my rights to remove any or all of the obstructions/encroachments if the landowner refuses to do so?
 


BelizeBreeze

Senior Member
YOU, can't do anything on the easement granted to you by the landowner. It's not your property. You ONLY have the right to use this land to come and go using the land.
 
Sand Lake Shoppes Family Limited Partnership v. Sand Lake Courtyards, L.C., ET AL, 816 So. 2d 143 (Fla. 5th DCA 2002), says;

"The question is not whether Shoppes has been entirely deprived of ingress and egress, but, rather, whether or not there has been any interference of its right to free passage over the easement to the degree and amount originally contemplated by the parties." Shoppes, supra.

Although obviously a Florida case, easements generally are established by common law, or by statutory construction; then recorded in the official records in the county where the property is located; and that agreement cannot be dissolved or ammended without the stipulation or subsequent agreement of both the dominant and servient easement owners. In other words, no unilateral actions can be taken by either easement owner.

It would be my guess, that Georgia may well have similar case law that controls in your situation. If not, there is overwhelming abundance of the above type case law in Florida for guidance. This is by no means the only one that there is. More to your point, Shoppes directly cites to Diefenderfer v. Forest Park Springs, 599 So. 2d 1309 (Fla. 5th DCA), review denied, 613 So. 2d 4 (Fla. 1992), where Diefenderfer had a 50 foot wide recorded easement of which he had use of just 12 feet, as a result of a wall having been erected by the servient easement owner. Read Diefenderfer, for even more details.

In Florida, the action in court is to;

1. Pettition for and obtain first, a Temporary Injunction : (Enjoining your neighbor from further acts until the court settles the dispute).

2. Pettition for and obtain an Injunction: (Enjoining your neighbor from doing anything further during the course of litigation).

3. Pettition for and obtain a Permanent Injunction: (Enjoining your neighbor from doing anything further in the future).

4. Pettition for and obtain a Mandatory Injunction: (A direct order of the court to remove any obstructions and/or encroachments by a specified time, and prohibiting any similar such acts in the future).

An action in Mandamus, has been found to have no jurisdiction, insofar as Mandamus is a one-time only command and/or remedy.
 
Last edited:

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top