Fence in easement for utilites but no utilities exist

What is the name of your state? PA

Deed restrictions establish a 5ft easement for the homeowners' assoc. along adjacent properties specifically for utilities and water drainage. When purchased, my property included a fence that was located within this 5ft easement (currently no utilities/drainage exist in this easement). As the result of a related legal case with the homeowners' association, the association now claims this to be an "open" easement (apparently due to the judges decision on the related case), and may force the removal of existing fences even if no utility/drainage exists. The fence required the assoc.'s approval (building permit approved by assoc.). By-laws mention building in easement with assoc. permission. Can they now revoke their approval and force me to move my fence out of the easement at my cost even if there are no plans to install utilities? It was also mentioned that the assoc. may not force current owners to move existing fences, but if sold the new owners would have to comply. Ultimately it still devalues my property because I would have to disclose that and most buyers would request either the fence be moved before they would buy, or I decrease the price since they would have to move it. Do they have any legal right to force the removal of my fence at my cost? I understand that the fence could be removed/destroyed IF they do need to install/maintain utilites.

Q: Do they have any legal right to force the removal of my fence at my cost? I understand that the fence could be removed/destroyed IF they do need to install/maintain utilites.

A: Yes, this is a utilities easement. The terms of the utility easement do not require that any kind of utilities be located in that easement.

Utilities easement

Q:The fence required the assoc.'s approval (building permit approved by assoc.). By-laws mention building in easement with assoc. permission. Can they now revoke their approval and force me to move my fence out of the easement at my cost even if there are no plans to install utilities?

Q: Does a Title Insurance Policy cover the cost of this type of property related issue?

Q: How are live trees/bushes/etc. (pre-existing or planted) viewed in relation to a utility easement (deed doesn't mention fences or landscaping)? Why would I have to move my fence (dead trees in a line) while someone else is allowed to leave their landscaping (live trees in a line) when neither of us have utilites that need access? We both understand that the association has the right to remove the trees (dead or alive) IF required, but why should I be forced to do it at my cost while my neighbor (with the live trees) is not?

Q:The fence required the assoc.'s approval (building permit approved by assoc.). By-laws mention building in easement with assoc. permission. Can they now revoke their approval and force me to move my fence out of the easement at my cost even if there are no plans to install utilities?

A: I have no idea because I have not read the CCRs.


Q: Does a Title Insurance Policy cover the cost of this type of property related issue?

A: No.


Q: How are live trees/bushes/etc. (pre-existing or planted) viewed in relation to a utility easement (deed doesn't mention fences or landscaping)?

A: If vegetation is in the way when they want to install utilities, then the vegetation will be cut. OR maybe they want to keep vegetation out of the easement altogether, regardless of the existence of utilities.


Q: Why would I have to move my fence (dead trees in a line) while someone else is allowed to leave their landscaping (live trees in a line) when neither of us have utilites that need access?

A: Ask the association.


Q: We both understand that the association has the right to remove the trees (dead or alive) IF required, but why should I be forced to do it at my cost while my neighbor (with the live trees) is not?

A: Ask the association.

Easment Definitions

Q: Is there a legal definition for "Free Easement"?

Q: Is there a legal definition for "Utility Easement"?

I've looked for both but have not found anything consistantly defined. I've also noticed from most threads related to easements that the extent of the use of the easement depends upon how specific the wording is in the deed.

Q: If the easement is very specifically defined, (ie. utility easement with ingress/egress for the installation and maintenance of fore mentioned utility) does the easement provide any rights by the holder beyond those specifically mentioned (ie. clearing brush, trees, or fences when no utility exists)?

Q: Is there a legal definition for "Free Easement"?

A: I have never heard that term before.


Q: Is there a legal definition for "Utility Easement"?

A: This is an easement for cable, electric, water, sewer, etc. Usually, if that is all it is called, then above-ground wires, buried cable, pipes, etc. would be allowed.


Q: If the easement is very specifically defined, (ie. utility easement with ingress/egress for the installation and maintenance of fore mentioned utility) does the easement provide any rights by the holder beyond those specifically mentioned (ie. clearing brush, trees, or fences when no utility exists)?

A: Probably all rights necessary to carry out those functions. It is irrelevant that no utility actually exists in the easement. If, for example, there is an easement for access purposes going up and down over a cliff, the easement is still there even if there is no road and even if it is physically impossible to build a road.

Please describe the fence, by dead trees are you referring to dead trees or lumber?

"Dead Tree" Fence

Q:describe the fence, by dead trees are you referring to dead trees or lumber?

A: My "dead tree" fence is actually a split rail fence. Posts are spaced approximately every 10 feet with an upper and lower split rail spanning between.

This is my fence, however I am sure (I have seen) various other types of fences in the communitee (ie. chain link) that would be subject to the same ruling.

Q: Prior response from seniorjudge mentions "Probably all rights necessary to carry out those functions" in relation to rights the easement holder has. Does the easement holder (homeowners' association in my case) have to provide any explaination as to how their actions relate to "those functions"?

Q: How is moving a fence out of the easement related to carrying out the "installation and maintenance" of a utility when there are currently no pending installation of a utility?

Q: Is the easement holder required in any way to be consistent in their application of rights related to the easement? (ie. force me to move my "dead tree" fence while not requiring my neighbor to move/remove their "live tree" fence)

I'm trying to understand why the homeowners' association thinks it is necessary to force homeowners to move their existing fences (and even stop approving new fences) built in the easement if they (as the easement holder) have no plans to do anything with the easement.
Q: Is there some legal reason they would be advised or urged to do this?

There is a related case between the homeowners' assoc. and a property owner that initiated all of this. I am trying to get the details of the case from the homeowners' assoc. lawyer. I just don't see the logic in this action - move your fence to keep the easement "clear," but you can keep a row of 18" trees along your property line. Why bother trying to keep it "clear"? It hasn't been for years, and they most likely won't force anyone to do it UNTIL the propery changes owners, whether next year or 50 years from now.

Q: By forcing me to move my fence, are they not limiting the enjoyment and use of the property for which I am paying taxes?

Q: Ultimately they are negatively impacting my property value - is this negotiable?

Q: Prior response from seniorjudge mentions "Probably all rights necessary to carry out those functions" in relation to rights the easement holder has. Does the easement holder (homeowners' association in my case) have to provide any explaination as to how their actions relate to "those functions"?

A: No.


Q: How is moving a fence out of the easement related to carrying out the "installation and maintenance" of a utility when there are currently no pending installation of a utility?

A: Again (for I think the third time), this is totally irrelevant.


Q: Is the easement holder required in any way to be consistent in their application of rights related to the easement? (ie. force me to move my "dead tree" fence while not requiring my neighbor to move/remove their "live tree" fence)

A: No.


Q: I'm trying to understand why the homeowners' association thinks it is necessary to force homeowners to move their existing fences (and even stop approving new fences) built in the easement if they (as the easement holder) have no plans to do anything with the easement.

A: Irrelevant.


Q: Is there some legal reason they would be advised or urged to do this?

A: Irrelevant.


Q: By forcing me to move my fence, are they not limiting the enjoyment and use of the property for which I am paying taxes?

A: No, because it is on their easement.


Q: Ultimately they are negatively impacting my property value - is this negotiable?

A: You can try negotiating. Not everyone finds these kinds of fences attractive. I mowed about a mile of that kind of fence at a state park one summer when I was in high school. (Last manual labor I did, if memory serves me correctly.) Anyway, I had to take the danged thing apart, mow, and then put it all back together again. I never want to see another split rail fence as long as I live!


BUT...that's just my opinion.

If you have to remove the fence you should be able to do that with little difficulty, same for moving it, it's not like having to move a cinder block fence, even a high school lawn guy can do it

rmet4nzkx said:

If you have to remove the fence you should be able to do that with little difficulty, same for moving it, it's not like having to move a cinder block fence, even a high school lawn guy can do it

Click to expand...

I did have to go through intensive training. It's not easy, you know.

Take off rail.

Mow.

Put rail back.


Hey, it took me a while to get these steps down correctly!

seniorjudge said:

I did have to go through intensive training. It's not easy, you know.

Take off rail.

Mow.

Put rail back.


Hey, it took me a while to get these steps down correctly!

Click to expand...

Were you wearing a shirt

rmet4nzkx said:

Were you wearing a shirt

Click to expand...

Maggie?

Is that you, Maggie?

seniorjudge said:

Maggie?

Is that you, Maggie?

Click to expand...

Judgy, Shhhhhhhhhhhh
No, it's not maggie, I thought ENASNI would like to know, she likes this forum and we know she likes you! As you may have noticed maggie forms cyber attatchments tooooo easily

rmet4nzkx said:

Judgy, Shhhhhhhhhhhh
No, it's not maggie, I thought ENASNI would like to know, she likes this forum and we know she likes you! As you may have noticed maggie forms cyber attatchments tooooo easily

Click to expand...

https://forum.freeadvice.com/showthread.php?t=106769

jimmyv

notre dame

indiana


...makes you wonder...