Easements?

[Jazzman]

What are the typical problems that can arise? Does there need to be a set back between house and easement? Do they turn away many buyers? Any comments appreciated.

[njtosd]

Depends on the kind of easement . . . there are so many possibilities. To name just a few there are utility easements, right of way, etc. An easement that would allow a power company to drive trucks across your front lawn would be unappealing to buyers. An easement allowing the Sierra Club to use your front yard on the nights that Halley’s comet is visible might not be an issue for most . . . A few more details would help.

[CA renter]

Agree with njtosd; it depends on the individual situation.

In general, if your property is the one that requires access through another person’s property via easement access, the value of your property will probably be affected.

If that’s the case, this might be helpful. Note that this is Virginia law, so there are a few differences between VA law and CA law WRT easements (a prescriptive easement in California requires 5 years of of open, hostile use, while VA requires 15 years).

http://www.martinwrenlaw.com/virginia-law-articles/access.pdf

This might also be helpful:

http://www.escrowhelp.com/articles/20031104.html

[Jazzman]

This is a residential easement. There are two properties behind this home, so double the traffic. The easement road is paved and wide enough to accommodate a medium sized truck, but one corner of the house buts right up to the easement. A small error in driver judgement would be nasty. I assume delivery trucks would use it, but I’m guessing the owners wheel their garbage bins out onto the road, which I see as another potential conflict. Maintenance enforcement is another source of conflict I guess. It seems to me that any home with easements should be priced accordingly.

[svelte]

I can tell you we turned down buying an excellent house because the only way to access it was through an easement on the neighbor’s property. It really killed us because the house was gorgeous and on a large lot with killer views.

I just couldn’t get past the easement thing – it felt as if someone else could make my life very miserable.

Similarly, we wouldn’t buy a property that had this type of easement through it for similar reasons.

[Jazzman]

Well, I’m glad it’s not just me. What I find surprising is that the inspection report (provided by seller) made no mention of it, and neither did my broker Perhaps it’s too obvious, or doesn’t normally cause problems.

[CA renter]

[quote=Jazzman]Well, I’m glad it’s not just me. What I find surprising is that the inspection report (provided by seller) made no mention of it, and neither did my broker Perhaps it’s too obvious, or doesn’t normally cause problems.[/quote]

I’m surprised the seller didn’t disclose it, and that your broker didn’t mention it. One would think that’s something that MUST be disclosed. How did you find out about it?

That’s a pretty big deal, IMHO.

[NotCranky]

[quote=CA renter][quote=Jazzman]Well, I’m glad it’s not just me. What I find surprising is that the inspection report (provided by seller) made no mention of it, and neither did my broker Perhaps it’s too obvious, or doesn’t normally cause problems.[/quote]

I’m surprised the seller didn’t disclose it, and that your broker didn’t mention it. One would think that’s something that MUST be disclosed. How did you find out about it?

That’s a pretty big deal, IMHO.[/quote]

Didn’t your title company tell you anything about it?

[Jazzman]

Didn’t get as far as title. I discovered the problem by accident on a second visit. I had assumed a hedge was shielding the home, until the sellers broker pointed out the hedge was on the neighbors side. I put the blame mostly on my shoulders, but it goes to show you can’t depend on others always to point out the obvious.

[NotCranky]

O.K. Good that you aren’t committed yet.
Someone can definitely try to make your life miserable for a while…then you have to drive by the jack-ass or watch them drive by in perpetuity.

It could also work out just fine. You can do some research and find out if there is a road maintenance agreement and what the terms are.

[njtosd]

Is this actually an easement or is it what is sometimes called a “flag lot”? If you bought this property, would you own the driveway that you are talking about, or is it a small strip that is owned by other property owners? I ask this because you mention maintenance of the area; if it is owned by you with an easement benefitting the other owners, the maintenance would be your responsibility, not theirs, and you might owe a duty to them to maintain it in a safe condition. An easement will be identified on the survey map that is provided to you by the title company. You should get this clarified if you are still interested in the house.

[lookingagain]

If I may hijack this thread, I also have an easement question. The question is who can benefit from an easement. In this particular case, I owned a house with an easement covering the back ten feet of the lot for utility purposes (SDGE and the county for possible future electrical and/or sewer uses and written specifically in that way). My neighbor at the time used this strip for access to her yard but after many years of gophers and erosion the strip became pretty much impassable. So my neighbor came to me and demanded that I build a retaining wall and back fill so that she could park her pickup in her back yard. She said that an easement is an easement and I was legally responsible for keeping it in useable condition for anyone ( she stated “I’m a realtor so I know”). I countered that the easement was only for utility companies and that she could take a flying leap. She kept up with it for about a year, demanding that I fix it and threatening to sue me to force repairs. She even went behind my back to my insurance company to get them to fix it. They also told her to where she could stick her claim…

Anyway, while I think she had no claim, was I correct? Are easements specific to what is written in the title (or wherever it is written)? Or was she correct in saying that I had a legal obligation to keep it passable for any and all people who want to use it.

It does not really matter now, as I sold the house a few years back, but I am sure that she was pestering the new owners about it as soon as they moved in.

Richard

[njtosd]

Based on the information that you’ve provided here, I think you were correct and your neighbor was wrong. The definition of an easement is “the right to use the real property of another for a specific purpose.” In the case you describe, the easement benefitted the utility companies. HOWEVER, you have to be very careful to avoid an easement being created by the course of use. If you allow easement type use of your property for a sufficient period of time, an easement may be created. The laws are different in different jurisdictions, but it’s always good to let people know that although you are allowing them to cross your backyard (or whatever) you have no intent to create an easement. It’s kind of tricky . . .

[Jazzman]

[quote=njtosd]Is this actually an easement or is it what is sometimes called a “flag lot”? If you bought this property, would you own the driveway that you are talking about, or is it a small strip that is owned by other property owners? I ask this because you mention maintenance of the area; if it is owned by you with an easement benefitting the other owners, the maintenance would be your responsibility, not theirs, and you might owe a duty to them to maintain it in a safe condition. An easement will be identified on the survey map that is provided to you by the title company. You should get this clarified if you are still interested in the house.[/quote]
My understanding is that the home we offered on owned the easement but maintenance was the responsibility of the homes behind. Apparently, they resurfaced the road without even asking permission. Luckily they did a nice job. From what you are saying, responsibility for maintenance could have fallen to us.

[njtosd]

[quote=Jazzman]
My understanding is that the home we offered on owned the easement but maintenance was the responsibility of the homes behind. Apparently, they resurfaced the road without even asking permission. Luckily they did a nice job. From what you are saying, responsibility for maintenance could have fallen to us.[/quote]

Hmmm. I’m not sure whether you worded this exactly as you intended, but there is a difference between “owning the easement” and “owning land that is subject to an easement.” The first is only a right of use, the second is an actual ownership right. To make an analogy, it’s like having a right to use the health club vs. owning the health club. If I were you I’d really want to see a survey map of the property and the document that created the easement to get this cleared up. I would also recommend (very strongly) that you talk to a real estate attorney if you intend to go ahead with this transaction to make sure you get everything straight.

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