Easements: Just for Now or Forever? | Lasher Holzapfel Sperry & Ebberson PLLC

Easements are a right to enter and use land that may transfer with the ownership of the land. Easement issues usually arise when one property owner makes improvements on his or her property without first surveying the property to identify the boundary lines of the property. If the improvement goes over the property line into a neighbor’s property, then the neighbor may seek legal action to remove the improvement or force an easement.

An easement allows a party to use land that belongs to someone else for a specific purpose, such as:

• The right to walk through someone’s land to access your property;
• The right to maintain a rockery, fence, or other landscaping features between your property and a neighbor’s; or
• The right to use and access sidewalks, stairs, and other aspects of a communal living space between townhome or condo units or between properties.

The purpose of an easement it to allow the owner of the land to retain full legal title to the property but allow another party access to the land.

For example:

You live in a community with specific landscaping guidelines and pockets of community space or shared pathways between homes. The Homeowners’ Association also has limitations on the type of fencing and landscaping permitted.

During COVID your neighbor has become an avid gardener and has made improvements to their landscaping and added features that run along the edge of your property line. In an effort to maintain your own yard, you decide to conduct a survey and do landscaping work on your property. The survey reveals that a portion of the area your neighbor has been landscaping is actually a portion of your property. What can you do?

Your neighbor unknowingly has been landscaping a portion of your property which has resulted in them placing a rockery landscaping feature worth thousands of dollars. You want to maintain a good relationship with your neighbor but you are concerned that if they sell the property a new neighbor will expand the landscaping or otherwise stop maintaining the landscaping feature that now crosses onto your property.

How can you navigate this to ensure that they remain financially responsible for maintaining their encroaching landscaping and, if they ever remove it, do not replace it with a new feature?

In such a situation, an express easement can be drafted to provide specific terms regarding the maintenance of the landscaping feature. An express easement can be used to convey easement rights for the benefit of a specific neighbor that cannot be sold, assigned, or inherited. An express easement can also be used to delegate financial responsibility for ongoing maintenance of the landscaping feature to limit your financial liability if your neighbor fails to maintain the landscaping feature they build onto your property. Further, an express easement can be drafted to address what happens to the landscaping feature if it is removed or otherwise deteriorates to such a degree that it causes waste to your property. This allows you as the property owner to negotiate with your neighbor to limit any access they have to your property to solely maintaining the feature so long as it is feasible or until it is otherwise removed and prevents them from further expanding their landscaping onto your property.

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