Gate on Ingress/Egress Easement?

[Norwegian Cal]

What is the name of your state? GEORGIA

We own land that has an ingress/egress easement on it, serving two other properties. A few years ago we, along with one of the other property owners, put a gate up (with an automatic opener) at the entrance to the easement. The third property owner agreed to it as well. A few months later the third property owner sold his land. The new owners said they liked the gate and enjoyed it for several months until one of their subcontractors accidentally hooked it with his truck, ripping it out. We all decided to replace the gate, but wanted to wait until everybody was done building/landscaping so it wouldn't happen again.

In the meantime, the newest neighbors became angry with us because we had sent them a letter asking them to please keep their pets from defecating in our yard and to please treat their pets more humanely. They actually took us to court over our letter for "harassment" (they lost).

As we were getting ready to put our gate back up, the newest neighbor said that he did some research and found out he could object to us putting the gate back up (since the gate was not depicted on the plat when they bought their land). We, along with the other neighbor, have replaced the gate and automatic opener. We have provided everyone with a code. The newest neighbor is now taking us to court AGAIN to sue us to have the gate removed and for us to pay compensatory and punitive damages! We have heard from other neighbors that the REAL reason they're suing us is to harass us. They have since put in their own gate at the end of their driveway.

Do they have a legitimate case?

 

[Florid-aise]

Do they have a legitimate case?

Not if Georgia still has a "clean hands" doctrine.

 

[seniorjudge]

What does the written easement say about this situation?

Usually, a gate cannot be put on an easement unless everybody agrees. However, everyone agreed here.

Their agents wrongfully destroyed the gate. (Thus the comment about clean hands.)

Now that the gate is going back up, I don't think they can complain.

If YOU had taken it down and then tried to put it back up, it might be a different outcome.

 

[Florid-aise]

What does the written easement say about this situation?

Usually, a gate cannot be put on an easement unless everybody agrees. However, everyone agreed here.

Their agents wrongfully destroyed the gate. (Thus the comment about clean hands.)

Now that the gate is going back up, I don't think they can complain.

If YOU had taken it down and then tried to put it back up, it might be a different outcome.

Just occured to me SJ, that if the neighbors dug their own gateposts, they got their hands dirty doing that too.

 

[Norwegian Cal]

Senior Member,

You referred to the "written easement"? Our deed states, "The property is conveyed subject to a 50 foot easement of ingress and egress as shown on the plat and the following covenants shall be covenants running with the land... Also conveyed is a non-exclusive right of ingress and egress over, across and through the 50 foot ingress-egress easement as delineated upon the above described plat". Is this (please excuse my ignorance) what you are asking?

Their argument is that because the plat doesn't state that we can erect a gate then we can't. Our argument is that obviously a plat can't state everything we CAN have. It states clearly what we can't have: Less than 1,650 square feet of heated floor space, chicken houses, hog farms, etc.

The land was unimproved when we bought it. The plat doesn't state or show that we can erect mailboxes, yet we did. It also states, "shall be covenants running with the land". Following their argument, wouldn't this mean that they can't have a gate either? The covenants also state that "the property shall be used only for single-family residential purposes", yet the suing neighbors maintain a business out of their home. We have all chosen to ignore it even though it causes additional damage to the road we are all required to financially maintain equally.

Thank you in advance for any advice!

 

[seniorjudge]

Q: Our deed states, "The property is conveyed subject to a 50 foot easement of ingress and egress as shown on the plat and the following covenants shall be covenants running with the land... Also conveyed is a non-exclusive right of ingress and egress over, across and through the 50 foot ingress-egress easement as delineated upon the above described plat". Is this (please excuse my ignorance) what you are asking?
A: Yes and what does it say in the ellipsis?

Q: Their argument is that because the plat doesn't state that we can erect a gate then we can't.
A: Pig gristle. It depends also on what the deeds say.

Q: Following their argument, wouldn't this mean that they can't have a gate either?
A: Yes, but their argument is PG (see above).

Q: The covenants also state that "the property shall be used only for single-family residential purposes", yet the suing neighbors maintain a business out of their home. We have all chosen to ignore it even though it causes additional damage to the road we are all required to financially maintain equally.
A: This is called "overburdening the easement" and may also be a cause of action on your behalf. Ask your lawyer.

 

[Norwegian Cal]

A: Yes and what does it say in the ellipsis?

I don't see a reference to "ellipsis" in the plat, the deed or the covenants. What is the ellipsis? In any case, nowhere does it state that we cannot have/replace a gate.

Q: Their argument is that because the plat doesn't state that we can erect a gate then we can't.
A: Pig gristle. It depends also on what the deeds say.

The Deed mentions nothing about gates. It doesn't prohibit them, nor does it explicitly say that we can have them.

A: This is called "overburdening the easement" and may also be a cause of action on your behalf. Ask your lawyer.

Thanks, we'll look into that also.

Finally, we have just heard from reliable sources that they are moving (although they are trying to keep that secret)! Does this not show malicious intent since they will have no future interest in whether the gate stays or goes?

Thanks again in advance...

 

[seniorjudge]

Q: Our deed states, "The property is conveyed subject to a 50 foot easement of ingress and egress as shown on the plat and the following covenants shall be covenants running with the land[...]Also conveyed is a non-exclusive right of ingress and egress over, across and through the 50 foot ingress-egress easement as delineated upon the above described plat".

A: What does it say in the three dots?


Q: Finally, we have just heard from reliable sources that they are moving (although they are trying to keep that secret)! Does this not show malicious intent since they will have no future interest in whether the gate stays or goes?

A: It's possible that it shows their malicious intent. I gave up several decades ago trying to figure out what peoples' motives were since I was always wrong. In any event, assuming that they do have a malicious intent, that is irrelevant.

 

[Norwegian Cal]

Q: Our deed states, "The property is conveyed subject to a 50 foot easement of ingress and egress as shown on the plat and the following covenants shall be covenants running with the land[...]Also conveyed is a non-exclusive right of ingress and egress over, across and through the 50 foot ingress-egress easement as delineated upon the above described plat".

A: What does it say in the three dots?

Ah, that ellipsis! : ) The seven covenants are:

1. The property shall be used only for single-family residential purposes. Any residence constructed upon the property shall have not less than 1650 square feet of heated floor space. No residence shall be constructed upon the property until the plans and specifications are approved by (developers' names). (Question: The evil neighbors' attorney is associated with these developers; will the developers be able to testify that when they developed the land they had no intention of allowing a gate at the entrance to the easement? Would that testimony be relevant?)

2. The property shall not be used for commercial dog kennels, hog parlors, chicken houses, or turkey operations.

3. The property may not be subdivided prior to July 12, 1999.

4. The maintenance of the common drive will be prorated equally among the owners of four parcels in Silver Mill Farms.

5. No owner shall allow inoperable automobiles, inoperable trucks and/or heavy equipment to be parked on the property.

6. The property may not be used for any form of landfill, including construction or clearing waste, i.e. stumps, other than those landfills originated by (developers' names).

7. No mobile home or modular home shall be placed or constructed upon the property.

As stated in another post, the deed then says, "Also conveyed is a non-exclusive right of ingress and egress over, across, and through the 50 foot ingress-egress easement as delineated upon the above-described plat."


Q: Finally, we have just heard from reliable sources that they are moving (although they are trying to keep that secret)! Does this not show malicious intent since they will have no future interest in whether the gate stays or goes?

A: It's possible that it shows their malicious intent. I gave up several decades ago trying to figure out what peoples' motives were since I was always wrong. In any event, assuming that they do have a malicious intent, that is irrelevant.

Is it still irrelevant if we file a counter-suit to recover attorney's fees and court costs, claiming that this is just a frivolous lawsuit brought simply out of harassment?

Thanks again...

 

[seniorjudge]

Q: Is it still irrelevant if we file a counter-suit to recover attorney's fees and court costs, claiming that this is just a frivolous lawsuit brought simply out of harassment?

A: Probably.

 

[Norwegian Cal]

Attorney's Fees?

We won the case! Thanks for all your help! Now we're going to file for attorney's fees and costs of litigation. We understand it's difficult to get a judge to award these costs even though it's clear that their intention was to harrass us. (For example, they had been planning to move all along and did in fact move less than three weeks after the hearing.)

Our attorney thinks we have a small chance if he can find case law that supports our position. The problem, as we understand it, is that the other party apparently had a "legitimate" legal issue (gate/easement), even though their intent was simply to harass us. Does anybody know of case law that covers this or do you have any other thoughts on how to proceed?

Thanks in advance...