Easement-Neighbor's Gate

[AircraftRepair]

This is not an easy situation to describe, but I'll do my best. We live on one street, our neighbors on another. Our backyards meet on the property line. It's the same way all the way down the two blocks. All yards are fenced down the block. However, there is an easement for city usage. It's somewhat of an imaginary easement. We own 6 feet on our side of the easement and our neighbor owns six feet on his side. Through the years, fences were put up by one owner or by the other. There is no visible easement. Now it so happens that the neighbor behind us moved in and rebuilt the fence that divided our two properties. Rather than enclose his portion of the easement with the new fence, he decided to build the fence 6 feet on his side leaving his easement 6 feet on our side. Then he decided to put a gate on the fence to access his six feet of the easement that is in our backyard. So, now he comes through the gate whenever he pleases to dump yard trimmings and such...which is technically his easement property, yet in our backyard. We worry that if our dog decided that he was a threat one of these times our neighbor might be bitten. It doesn't seem right!!

Do we need to put up another fence to keep him out of our yard??

We have taken care of this easement property for over 12 years before he moved in and we continued to do it for now another 7 years.

It just doesn't seem right...please respond.

 

[AircraftRepair]

Sorry, I forgot to add the state that I live in...Oregon

Please advise

 

[Tracey]

I'm a little confused, so I'll restate the facts. If I got them wrong, please let me know.

You & Neighbor N shared a single fence between your 2 backyards. The fence ran down the middle of a 12 foot wide city easement, probably for an alley. N tore down the shared fence and built a new fence solely on his property, 6 feet back from the property line. N dumps stuff in the 6 feet between his fence and the property line. You presumable want the fence reinstalled along the property line, whether he keeps the fence he built or not. Did I get it right?

If the fence was built right on the property line, it was a shared fence. Examine the deed records for the 2 properties and see if either one mentions the fence - who pays to maintain it, who installed it, if mutual consent is required to tear it down etc. If you can find any recorded information/agreements, use them as your guide.

If there are no agreements, you have to fall back on common law. Because 1/2 the fence was on your property, N committed trespass when he tore down your 1/2 of the fence. He will therefore have to pay at least 50% of the cost of installing a new fence. Get estimates and sue him in small claims court if he won't settle out of court.

You don't have to install the new fence to keep him out of your yard. If he crosses the old fence line, he's trespassing. However, you might want to install a new fence to protect yourself from liability if your dog bites him. You will have to evaluate how likely this is. You may be able to convince him to pay to reinstall the fence by pointing out that he may be creating an attractive nuisance with the trimmings, subjecting him to liability if your kids are injured by his yard waste & such.


If the fence was not built on the fence line, it belonged to whichever of you owned the property on which it was built. If it was his, he can tear it down anytime he likes. If it was yours, he has to pay to put in a new fence.

A note on easement "ownership": when a neighbor/city/utility owns an easement over some of your land, the land remains yours. You are free to do anything you like on it. However, the easement owner (neighbor/city/utility) can come along later at any time and exercise the easement rights. Applied to the fence, this meant that you could install the fence on the property line, but that the city could decide to pave an alley & make everyone on the block move their fences back 6'.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.