Fence on easement

[CAFarmer]

What is the name of your state? California

Here is the problem: My wife and I have a twenty foot right of way easement through my neighbor’s property which he is trying to sell. The easement is the southern twenty feet of the northern twenty nine feet of his property. About three years ago he put T-posts along the south side of the easement and up to three feet inside the easement (No fencing yet just T-posts). The problem is that we need at least twenty feet for the driveway if we put two houses on our property. We are afraid that when he sells the property the new owner may not let us use the entire easement. My neighbor had the property surveyed last year. He knows the fence is in the wrong place but does not want to move it. Do you think I need a lawyer? I want to be a good neighbor but don’t want to lose the access. I don’t know who will buy the property or if they will be nice about it. What do you think?

 

[seniorjudge]

What is the name of your state? California

Here is the problem: My wife and I have a twenty foot right of way easement through my neighbor’s property which he is trying to sell. The easement is the southern twenty feet of the northern twenty nine feet of his property. About three years ago he put T-posts along the south side of the easement and up to three feet inside the easement (No fencing yet just T-posts). The problem is that we need at least twenty feet for the driveway if we put two houses on our property. We are afraid that when he sells the property the new owner may not let us use the entire easement. My neighbor had the property surveyed last year. He knows the fence is in the wrong place but does not want to move it. Do you think I need a lawyer? I want to be a good neighbor but don’t want to lose the access. I don’t know who will buy the property or if they will be nice about it. What do you think?

First, I am assuming that this easement is for ingress and egress.

Next, I am assuming that it was put in place when there was only one house. Thus, if you try to double the use on the easement, you could be overburdening the easement which is a big no-no.

So, start by talking to the neighbor and try to work something out. Then get a lawyer and have it drawn up correctly and recorded in the land deed records.

 

[lwpat]

Thus, if you try to double the use on the easement, you could be overburdening the easement which is a big no-no.

Not necessarily. If the easement is for that particular piece of property, there should be no problem with adding another residence. The problem would come if it is for an adjacent parcel or the use changes, like from residential to commercial. It sounds like two houses were intended from the beginning.

 

[CAFarmer]

First, I am assuming that this easement is for ingress and egress.

Next, I am assuming that it was put in place when there was only one house. Thus, if you try to double the use on the easement, you could be overburdening the easement which is a big no-no.

So, start by talking to the neighbor and try to work something out. Then get a lawyer and have it drawn up correctly and recorded in the land deed records.

1. This easement is for ingress and egress.
2. Zoning codes around here allow for two houses on a five acre lot if one of the houses is less than 1200 square feet. I don't know if this overburdens the easement, but it is common practice. How do I find out?