Warranty deeded 20ft easement washed out from flooding, grantors refusing to fix their part that we have to use to get to our property.

[LouisaC]

State is Alabama. First I need to explain that we have taken the warranty deed and the survey to a real estate attorney to verify and was told that if the grantors gave us any issues on widening the narrow 10 ft easement to the actual deeded 20 ft easement to take them to civil court. The storms have washed out the road in several places along the 1/4 mile easement of where we have to drive through their property to get to our drive. The oil pan under our car was scraping the road driving in and out of the ruts where a culvert pipe was loaded up with debris and broken in several places well within the 20 ft easement causing all the rain to wash out the previous work we had done. My husband contacted the owner and asked if he would buy the culvert pipe and we would pay the excavator fee to redo the road and cover the culvert pipe. He said he couldn't afford it. So my husband told him he'll pull the broken culvert out and clean out the ditch so the water could flow where it's supposed to and agreed. Had the excavator in and got the work done. A couple of days ago they brought out their small tractor and filled the ditch in and set two pieces of broken culvert at each end to make it look like the culvert was functional. We paid to have that done within our 20 ft easement even though that area of easement is what they have to drive on also. I know it's a civil issue BUT I don't know what division to file in, small claims? Cease and desist? They also have 2 old cars that have been there for 3 years within the 20ft easement that the excavator had to work around.

 

[PayrollHRGuy]

Your logical next move would be to contact the real estate attorney you have already talked to.

 

[LdiJ]

Your logical next move would be to contact the real estate attorney you have already talked to.

I agree. However, it is honestly possible that the servient tenant (the owner of the property) cannot pay for the repairs. If you get a judgement against them and they honestly cannot pay, you won't be able to collect on the judgment anyway. So carefully weigh the cost of doing the repairs yourself against the cost of the litigation.

However, you could sue them in small claims court if the cost of the repairs/removal of the vehicles is less than the small claims limit. It might not make it any more collectable, but it also might mean that it wouldn't cost much to sue. In that instance it wouldn't hurt to have a judgement against them.

 

[quincy]

I agree. However, it is honestly possible that the servient tenant (the owner of the property) cannot pay for the repairs. If you get a judgement against them and they honestly cannot pay, you won't be able to collect on the judgment anyway. So carefully weigh the cost of doing the repairs yourself against the cost of the litigation.

However, you could sue them in small claims court if the cost of the repairs/removal of the vehicles is less than the small claims limit. It might not make it any more collectable, but it also might mean that it wouldn't cost much to sue. In that instance it wouldn't hurt to have a judgement against them.

LouisaC wants to widen the current 10’ easement to its (apparently permitted) 20’ width, so more is being sought than simply repairs to the existing easement.

 

[FlyingRon]

Since we can't read the easement grant, it's also possible that it's the responsibility of the dominant tenant (LousiaC) to maintain the easement.

 

[LdiJ]

LouisaC wants to widen the current 10’ easement to its (apparently permitted) 20’ width, so more is being sought than simply repairs to the existing easement.

The cost of that would likely be on LouisaC. However that is why I also mentioned removing the vehicles.

 

[quincy]

The cost of that would likely be on LouisaC. However that is why I also mentioned removing the vehicles.

It could be on LouisaC. It depends on facts we don’t have.

 

[LdiJ]

It could be on LouisaC. It depends on facts we don’t have.

Come on Q, the odds of any easement requiring the servient tenant upgrade the road on the easement are slim to none. Certainly the OP would have the right to upgrade the road on the easement to include the full easement, but attempting to force the landowner to share in that should would be an exercise in futility.

 

[quincy]

Come on Q, the odds of any easement requiring the servient tenant upgrade the road on the easement are slim to none. Certainly the OP would have the right to upgrade the road on the easement to include the full easement, but attempting to force the landowner to share in that should would be an exercise in futility.

Come on, LdiJ. There are not enough facts here. We were told that both the dominant tenant and the servient tenant use that part of the easement.

 

[LdiJ]

Come on, LdiJ. There are not enough facts here. We were told that both the dominant tenant and the servient tenant use that part of the easement.

We are talking about an UPGRADE. Even if the easement requires the servient tenant to share in repairs since the servient tenant also uses the road, it would be bizarre, in the extreme, for an easement to require the servient tenant to participate in upgrading/widening the road.

 

[quincy]

We are talking about an UPGRADE. Even if the easement requires the servient tenant to share in repairs since the servient tenant also uses the road, it would be bizarre, in the extreme, for an easement to require the servient tenant to participate in upgrading/widening the road.

Source of your information, please. Thanks.

 

[PayrollHRGuy]

I agree. However, it is honestly possible that the servient tenant (the owner of the property) cannot pay for the repairs. If you get a judgement against them and they honestly cannot pay, you won't be able to collect on the judgment anyway. So carefully weigh the cost of doing the repairs yourself against the cost of the litigation.

However, you could sue them in small claims court if the cost of the repairs/removal of the vehicles is less than the small claims limit. It might not make it any more collectable, but it also might mean that it wouldn't cost much to sue. In that instance it wouldn't hurt to have a judgement against them.

The cost of that would likely be on LouisaC. However that is why I also mentioned removing the vehicles.

Come on Q, the odds of any easement requiring the servient tenant upgrade the road on the easement are slim to none. Certainly the OP would have the right to upgrade the road on the easement to include the full easement, but attempting to force the landowner to share in that should would be an exercise in futility.

We are talking about an UPGRADE. Even if the easement requires the servient tenant to share in repairs since the servient tenant also uses the road, it would be bizarre, in the extreme, for an easement to require the servient tenant to participate in upgrading/widening the road.

And you know who is in the best position to help the OP answer any of that?

The lawyer that the OP has already advised the OP on this issue.

 

[quincy]

The easement documents need to be read - and LouisaC’s attorney has presumably read them. We haven’t.

I agree with PayrollHRGuy.