Termination of easement that is an undue burden

[BobStanley]

What is the name of your state (only U.S. law)? North Carolina

Hi, I have a series of questions about an easement for a house that I purchased in July 2016. First, the following are quotes taken verbatim from the easement document that provide background for my questions: "non-exclusive, perpetual easement for purposes of ingress and easement."

Further quoting from the easement document: "[Original Owner/Serviant Estate], heirs and assigns, shall retain absolute ownership of said property and shall enjoy all rights of ownership."

"[Dominant Estate Owner], heirs and assigns, to the extent possible, shall refrain from damaging or injuring the above described property."

"...easement is appurtenant to and runs with the lands..." - i.e. this is an appurtenant easement and transfers with the sale of land.

Based on the non-exclusive, perpetual and appurtenant language in the easement, I concluded this is an iron-clad agreement. However, I also researched online that if an easement is causing an undue burden on the serviant estate, it may be dissolved. Below are the details of my specific case which I hope make this an undue burden and some other interesting factors that I have not been able to find an answer to online:

My property (serviant estate) has a fence, greenhouse, bushes, and trees all along the easement, which runs on the entire right-side of my house, from the street to the end of my fenced in yard. The fence, greenhouse, bushes and trees in the easement have all been there before I purchased the house in July: the greenhouse is inside the fence and was built 8 years ago; the fence has been there for about 15 years; the trees and bushes were there since before the beginning of the easement, signed on April 15th, 1998.

The dominant estate is a landlocked house and the easement grants access to the road. Due to the trees, bushes, fence and greenhouse, only walking access is an option, as there is not enough space for a car. The easement is NOT an easement of necessity for the dominant estate, nor is it an easement of convenience: the most convenient path from the landlocked house to the street is through my neighbor's property - my neighbor has a driveway on the side of his house that borders my property/easement and goes from the road straight back to the landlocked house. In sum, the landlocked house is directly behind my neighbor's house but has an easement with me instead, which is not logical. My neighbor's driveway is the most direct route to the road, but my neighbor refuses to let the lady living in the landlocked house access his property because he is worried that doing so would create an implied easement between him and the landlocked house.

When I purchased my house, the seller and my closing attorney both said in separate conversations with me that the easement will not be an issue, as it has not been enforced in years and the seller had no issues whatsoever. Since then, I have found out that the seller lied and was asked by the landlocked house lady (dominant estate) to take down the fence at time of purchase 8 years ago, but never complied. What makes this really interesting is that the closing attorney the seller used at time of purchase was the SAME closing attorney I used in July!

I chose to overlook the easement at time of purchase because of the conversations with my attorney and the seller. Since my purchase, the landlocked lady has gotten an attorney to send a request letter to take down the obstructions. Also, my neighbor (owner of property with the driveway that has the most direct path from road to the landlocked house) is an elderly man who is cared for by two renters. The renters, upon finding out about the easement, freaked out that the lady in the landlocked house would walk on my neighbor's property, creating an implied easement, so they started cutting my bushes on the easement, which is illegal because it is my property. I had to call the police, and while the officer agreed with me and told the renters to stop immediately, there was still considerable damage done to the bushes. I have two dogs and they now constantly bark at my neighbors when they are in the yard because most of the bushes are gone and the fence is chain link, so it doesn't give a lot of privacy.

I want to terminate the easement so that I can plant a row of tall bushes outside my fence (but still inside my property) and get my privacy back. I feel like a large part of my property cannot be used for anything - I want to update the fence as it needs repairs, build out the greenhouse, add bushes on the side, but nothing can be done with peace of mind given the easement. It would be a material depreciation of the value of the house and enjoyment of my yard/property if I was forced to take down my bushes/trees, fence and greenhouse. It is already a major burden to not feel like I can do anything to the entire right side of my property. Is this a reasonable argument for undue burden, especially given that the easement is not necessary and there is a much more convenient direct path to the road for the landlocked house to go through (my neighbor's property)? Also, is the fact that the fence was built 15+ years prior to my purchase and has not been officially protested in court another argument for undue burden - i.e., I purchased my house under the assumption that these features are mine and there to stay, and the price and appraisal value of the house reflects that.

Additionally, the landlocked house (dominant estate) burned down in 2003. I was told by a neighbor that it was allowed to be rebuilt only because the foundation was intact and was used to rebuild the house on. Was this legal and does this have an impact on the easement? I cannot find an answer to this anywhere.

To make matters even more interesting, the dominant/landlocked estate has a deck that also encroaches on the easement. Do I have the right to say that the deck should come down since it is on my property and the easement is purely for ingress and egress? While I have no intention of doing this, if I am further pressured to take down my fence I would like to understand if this is a valid recourse.

Lastly, what would the ramifications be if I were to plant tall bushes outside of my fence without first dissolving the easement? Understanding that the dominant estate can sue me to take them down, the dominant estate is nonetheless not allowed to physically take anything down on my property since the materials belong to me, correct?

Thank you in advance for your help and guidance! I would really appreciate any suggested next steps from the pros

 

[quincy]

What is the name of your state (only U.S. law)? North Carolina

Hi, I have a series of questions about an easement for a house that I purchased in July 2016. First, the following are quotes taken verbatim from the easement document that provide background for my questions: "non-exclusive, perpetual easement for purposes of ingress and easement."

Further quoting from the easement document: "[Original Owner/Serviant Estate], heirs and assigns, shall retain absolute ownership of said property and shall enjoy all rights of ownership."

"[Dominant Estate Owner], heirs and assigns, to the extent possible, shall refrain from damaging or injuring the above described property."

"...easement is appurtenant to and runs with the lands..." - i.e. this is an appurtenant easement and transfers with the sale of land.

Based on the non-exclusive, perpetual and appurtenant language in the easement, I concluded this is an iron-clad agreement. However, I also researched online that if an easement is causing an undue burden on the serviant estate, it may be dissolved. Below are the details of my specific case which I hope make this an undue burden and some other interesting factors that I have not been able to find an answer to online:

My property (serviant estate) has a fence, greenhouse, bushes, and trees all along the easement, which runs on the entire right-side of my house, from the street to the end of my fenced in yard. The fence, greenhouse, bushes and trees in the easement have all been there before I purchased the house in July: the greenhouse is inside the fence and was built 8 years ago; the fence has been there for about 15 years; the trees and bushes were there since before the beginning of the easement, signed on April 15th, 1998.

The dominant estate is a landlocked house and the easement grants access to the road. Due to the trees, bushes, fence and greenhouse, only walking access is an option, as there is not enough space for a car. The easement is NOT an easement of necessity for the dominant estate, nor is it an easement of convenience: the most convenient path from the landlocked house to the street is through my neighbor's property - my neighbor has a driveway on the side of his house that borders my property/easement and goes from the road straight back to the landlocked house. In sum, the landlocked house is directly behind my neighbor's house but has an easement with me instead, which is not logical. My neighbor's driveway is the most direct route to the road, but my neighbor refuses to let the lady living in the landlocked house access his property because he is worried that doing so would create an implied easement between him and the landlocked house.

When I purchased my house, the seller and my closing attorney both said in separate conversations with me that the easement will not be an issue, as it has not been enforced in years and the seller had no issues whatsoever. Since then, I have found out that the seller lied and was asked by the landlocked house lady (dominant estate) to take down the fence at time of purchase 8 years ago, but never complied. What makes this really interesting is that the closing attorney the seller used at time of purchase was the SAME closing attorney I used in July!

I chose to overlook the easement at time of purchase because of the conversations with my attorney and the seller. Since my purchase, the landlocked lady has gotten an attorney to send a request letter to take down the obstructions. Also, my neighbor (owner of property with the driveway that has the most direct path from road to the landlocked house) is an elderly man who is cared for by two renters. The renters, upon finding out about the easement, freaked out that the lady in the landlocked house would walk on my neighbor's property, creating an implied easement, so they started cutting my bushes on the easement, which is illegal because it is my property. I had to call the police, and while the officer agreed with me and told the renters to stop immediately, there was still considerable damage done to the bushes. I have two dogs and they now constantly bark at my neighbors when they are in the yard because most of the bushes are gone and the fence is chain link, so it doesn't give a lot of privacy.

I want to terminate the easement so that I can plant a row of tall bushes outside my fence (but still inside my property) and get my privacy back. I feel like a large part of my property cannot be used for anything - I want to update the fence as it needs repairs, build out the greenhouse, add bushes on the side, but nothing can be done with peace of mind given the easement. It would be a material depreciation of the value of the house and enjoyment of my yard/property if I was forced to take down my bushes/trees, fence and greenhouse. It is already a major burden to not feel like I can do anything to the entire right side of my property. Is this a reasonable argument for undue burden, especially given that the easement is not necessary and there is a much more convenient direct path to the road for the landlocked house to go through (my neighbor's property)? Also, is the fact that the fence was built 15+ years prior to my purchase and has not been officially protested in court another argument for undue burden - i.e., I purchased my house under the assumption that these features are mine and there to stay, and the price and appraisal value of the house reflects that.

Additionally, the landlocked house (dominant estate) burned down in 2003. I was told by a neighbor that it was allowed to be rebuilt only because the foundation was intact and was used to rebuild the house on. Was this legal and does this have an impact on the easement? I cannot find an answer to this anywhere.

To make matters even more interesting, the dominant/landlocked estate has a deck that also encroaches on the easement. Do I have the right to say that the deck should come down since it is on my property and the easement is purely for ingress and egress? While I have no intention of doing this, if I am further pressured to take down my fence I would like to understand if this is a valid recourse.

Lastly, what would the ramifications be if I were to plant tall bushes outside of my fence without first dissolving the easement? Understanding that the dominant estate can sue me to take them down, the dominant estate is nonetheless not allowed to physically take anything down on my property since the materials belong to me, correct?

Thank you in advance for your help and guidance! I would really appreciate any suggested next steps from the pros

First, a forum is not going to be able to provide you with legal assistance you need. You will want to find an attorney licensed to practice in your area to analyze the easement document and go over with you what you can and cannot do with your property.

You really should have paid greater attention to the existence of the easement prior to your purchase of the house and land.

I can tell you that, as servient owner, you cannot create obstacles for the dominant property owner. The dominant owner, in turn, cannot damage the property belonging to you.

 

[FarmerJ]

You didn't say anything about it so I am curious, was your property , the home with out access to the road and the disabled neighbor mans homes all the same parcel that was split up at one time? its too bad you didn't make a offer to buy that one property after the fire from the owner but I think your going to have to deal with cutting down any bushes and trees that are in the way because the only way you would get to decide that it was a walking on foot easement would be if the easement was worded that way I don't see anything the one with the easement wants as being outrageous. SO heres what I suggest , when the old guy next door dies buy his property and go to through the legal stuff you need to to widen up this easement , then either rent that home out your self or sell it after you have sold to your self a strip of that lot so you can make that easement wider so she can get in and out.

 

[154NH773]

I don't think buying the property with the more direct route in to the landlocked property will solve the problem. The servient owner may usually not divert or change the location of the easement without the dominant tenant's approval.
I think the law in this situation favors the dominant tenant (except for their deck), so I would avoid raising this to litigation.

 

[LdiJ]

I don't think buying the property with the more direct route in to the landlocked property will solve the problem. The servient owner may usually not divert or change the location of the easement without the dominant tenant's approval.
I think the law in this situation favors the dominant tenant (except for their deck), so I would avoid raising this to litigation.

I think that the dominant tenant would likely appreciate having a driveway...which exists on the other property.

 

[154NH773]

I think that the dominant tenant would likely appreciate having a driveway...which exists on the other property.

That could be true, but my point was that the servient tenant may not unilaterally change the location of the easement.

 

[quincy]

That could be true, but my point was that the servient tenant may not unilaterally change the location of the easement.

Agreed. The easement runs with the land.

 

[LdiJ]

That could be true, but my point was that the servient tenant may not unilaterally change the location of the easement.

I understand that. However, if the OP owns both properties, and offers the dominant tenant as easement on the other property, with the use of the driveway, in exchange for abandoning the current easement, I can pretty much bet that the dominant tenant would agree to that change.

 

[quincy]

I understand that. However, if the OP owns both properties, and offers the dominant tenant as easement on the other property, with the use of the driveway, in exchange for abandoning the current easement, I can pretty much bet that the dominant tenant would agree to that change.

There are a lot of assumptions being made in the suggestions offered.

One assumption is that Bob can purchase the neighboring property. The neighbor is, first of all, alive. There may be heirs who will inherit the property and who have no intention of selling it. Bob may not have the financial means to purchase the property EVEN IF the neighbor dies and the property is sold.

Bob should look at his situation as it is, which is his ownership in property with an easement that he must honor whether he likes it or not.

Because Bob did not research the easement prior to purchase, he needs to do so now. And he will want to consult with a real estate professional in his area to see what he can and cannot do with his property that does not infringe on the dominant property owner's rights to unobstructed access to his property.