Easement

[Zeusster]

NC
If party A grants easement for the sum of $1.00 to party B .... as follows:
The easement is described…then "does give, grant, and convey unto the parties, their heirs and assigns, a perpetual non-exclusive easement for purposes of ingress, egress and regress across property belonging to the parties of the first part described above, said easement being appurtenant to the above described tract belonging to the parties of the second part, and being more particularly described as follows..."

Can party B grant a new easement to party C across their own property that includes the easement previously given by party A?
The new easement is described...then "and also together with a non-exclusive right for ingress, egress and regress from the above described easement over the existing thirty (30) foot easement described in book".....which was party A's given easement.

Also, must utility easements be given? The easement from party A did not include utilities.
Thank you so much for your advice.

 

[justalayman]

Can party B grant a new easement to party C across their own property that includes the easement previously given by party A?

that is not across B's property. It is across A's. B cannot grant an easement on another's property.

Also, must utility easements be given?

if somebody wants utilities it would be a good idea

The easement from party A did not include utilities.

then unless A allows utilities it would appear B and C are not going to have utilities.

 

[Zeusster]

that is not across B's property. It is across A's. B cannot grant an easement on another's property.


if somebody wants utilities it would be a good idea


then unless A allows utilities it would appear B and C are not going to have utilities.

[/ Party B has been using A's easement since 2000 when they built their home (with utilities), bought adjoining land and gave it, along with A's easement to party C. Party C built a home and has used A's easement since 2005. I inherited A's land in 2007 including the property in front and back of parties B and C. I need access to the back property, across party B or by sharing their driveway and extending it by approximately 90' and they continue to deny the easement route on the deeds and/or share the driveway. I have tried multiple times over the years to work this out to no avail. In researching the deeds, I realized party C never had legal easement over A. Thank you so much for any advice. sQUOTE]

 

[Zeusster]

that is not across B's property. It is across A's. B cannot grant an easement on another's property.


if somebody wants utilities it would be a good idea


then unless A allows utilities it would appear B and C are not going to have utilities.

[/ Party B has been using A's easement since 2000 when they built their home (with utilities), bought adjoining land and gave it, along with A's easement to party C. Party C built a home and has used A's easement since 2005. I inherited A's land in 2007 including the property in front and back of parties B and C. I need access to the back property, across party B or by sharing their driveway and extending it by approximately 90' and they continue to deny the easement route on the deeds and/or share the driveway. I have tried multiple times over the years to work this out to no avail. In researching the deeds, I realized party C never had legal easement over A. Thank you so much for any advice. sQUOTE]

 

[justalayman]

One thing that may be a problem for you is:


if the other lots were once originally part of your lot and the division is what caused them to be landlocked, either lot owner would have an argument for an easement by necessity.

 

[Zeusster]

One thing that may be a problem for you is:


if the other lots were once originally part of your lot and the division is what caused them to be landlocked, either lot owner would have an argument for an easement by necessity.

[/QUOTE In 1948 our grandmother inherited about 18 acres, with no easement. In 1979 she divided it into 4 tracts and deeded it to her heirs. At that time she devised and included the same easement for all parties to share. She named an old road that is not on any legal surveys, but historically did exist. The road bed still exists but is grown over, and has been intermingled with party C's 4 wheeler paths all over our property and adjoining tracts behind him (trespass without permission). Further, party B built a barn along the line of the intended easement path. I have consulted an attorney but the fee to pursue in court is too high. I have filed a complaint to hopefully go before an arbitrator ]

 

[LdiJ]

One thing that may be a problem for you is:


if the other lots were once originally part of your lot and the division is what caused them to be landlocked, either lot owner would have an argument for an easement by necessity.

[/QUOTE In 1948 our grandmother inherited about 18 acres, with no easement. In 1979 she divided it into 4 tracts and deeded it to her heirs. At that time she devised and included the same easement for all parties to share. She named an old road that is not on any legal surveys, but historically did exist. The road bed still exists but is grown over, and has been intermingled with party C's 4 wheeler paths all over our property and adjoining tracts behind him (trespass without permission). Further, party B built a barn along the line of the intended easement path. I have consulted an attorney but the fee to pursue in court is too high. I have filed a complaint to hopefully go before an arbitrator ]

Its sounds like your grandmother's division of the original 18 acres caused an easement by necessity for the owners of all 4 tracts...in perpetuity. The issue would be where the easement is located.

 

[justalayman]

Its sounds like your grandmother's division of the original 18 acres caused an easement by necessity for the owners of all 4 tracts...in perpetuity. The issue would be where the easement is located.

OP said there was an easement granted.

In 1979 she divided it into 4 tracts and deeded it to her heirs. At that time she devised and included the same easement for all parties to share.

at best OP could attempt to require others to use the dedicated easement but given the situation, there may be a claim for a prescriptive easement if not outright adverse possession claim for ownership should the others not wish to travel a different path.

 

[OK-LL]

What prohbits B from assigning all or a portion of their easement rights to C? Unless the original grant indicates the Easement is non-transferrable, is there any reason B can't transfer it in whole or in part to C?

 

[justalayman]

What prohbits B from assigning all or a portion of their easement rights to C? Unless the original grant indicates the Easement is non-transferrable, is there any reason B can't transfer it in whole or in part to C?

the rights are appurtenant to the land. They are not granted to a person per se but to a person as the owner of a particular lot.

said easement being appurtenant to the above described tract belonging to the parties of the second part, and being more particularly described as follows..."

that means, as owners of the land, B can use the easement. If they do not own the land, they cannot use the easement

the easement is granted to allow access to B's land so C could not use it because they are not using it to access B's property.

Beyond that, if B did (accepting for argument's sake they can) assign his rights to C, B would no longer have any rights. Allowing more users of the easement than the original grantor intended is over burdening the easement and not allowed.

 

[Zeusster]

the rights are appurtenant to the land. They are not granted to a person per se but to a person as the owner of a particular lot.

that means, as owners of the land, B can use the easement. If they do not own the land, they cannot use the easement

the easement is granted to allow access to B's land so C could not use it because they are not using it to access B's property.

Beyond that, if B did (accepting for argument's sake they can) assign his rights to C, B would no longer have any rights. Allowing more users of the easement than the original grantor intended is over burdening the easement and not allowed.


[/What Action (Injunction?) could we request of the Court in regard to C's lack easement over our property and B granting easement over our property in the deed?

Is there any recourse against B's attorney who wrote the deed?

Is it unreasonable to propose a trade of granting B and C easement, including utilities for both, over us in exchange for C giving us easement to our property in the back?

I'm going to try writing a letter of proposal to B and C for the last time.

Also, can anyone suggest case law that addresses this easement issue supporting our case, that we may research and cite in court/ arbitration if this issue goes that far?

Thank you so much. Your advice is greatly appreciated. QUOTE]