Author Topic: Need suggestions . . . Roadway easement liability.  (Read 4069 times)

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Offline bayview

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Need suggestions . . . Roadway easement liability.
« on: March 01, 2011, 04:45:17 AM »

   We had purchased property about 7 years ago that has a roadway easement.   The easement allows access for our neighbor to get to a garage addition that was added to his house.   The neighbor also has a double garage on the other side of his home that he can access from the street. 

   The easement was formed in 1996 and accesses the county road but dead-ends at the rear of our property.    The language of the easement is very vague and only describes its dimensions.   Where locating pins were set, etc.   It doesn’t describe who can access, who maintains, who is liable for accidents and injuries. 

   We had put up a couple of signs at the beginning of the easement.   “Private Driveway . . .    Owners written permission needed for access”    Hoping that it would help eliminate public traffic and since we basically own the easement property, liability.   We had problems with a previous owner of the adjoining property.   His “friends” would spin the tires on their pickups and another would do “donuts” with his four wheeler in the gravel of the easement.    I told the owner at that time about the easement and I would have to repair the tire marks.   Well, it didn’t completely cease.   But he ended up losing his job, so the bank foreclosed.

   The signs have been in place for 3-4 years without any problems until a new owner purchased the adjoining property.   He was concerned that his guests may see the signs and feel that they would not be allowed to use the easement to access his property.   I mentioned at that time that his guests and he are welcome to use the easement or his guests could park on the other side of his home.   I told him the signs were put up to help reduce public access and limit my liability.

   Well we got a demand letter from his lawyer on Friday.   To remove the “offending” signs that are restricting access to the easement. . .    Basically our property.

   Do you have any suggestions that would help eliminate liability on the easement?

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    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #1 on: March 01, 2011, 05:27:18 AM »
You could go to the town and petition to make it a public right of way.  This way you can even reduce your taxable land.

Oh, and tell his lawyer to piss off.  Generally you can sue for a few things.  First is damages.  It would seem like a tough time to prove any financial damages of your sign.  If they are his guests then he can tell them they have permission. Second is for specific performance.  So he can pay his lawyer a ton of money and lots of time for you to take the sign down.

On the flip side, I can see his argument.  There is no legal requirement for his guests to get your written permission or his.  I am putting up a sign on my road.  "Privately maintained road - All damages will be prosecuted to the fullest extent of the law."  Which I intend to do.  My position is, even though my road is a public right of way, it is privately maintained at my expense, and any damage is a tort to me.  I had this problem with a recent logger destroying it.  Other signs that seem like they would pertain "Private Easement - No Entrance without permission."  Easements and rights of way are very old common law concepts.  You can look up definitions in Black's Law Dictionary for more specific definitions.  You could also find a local law library and pick up a treatise on it for your state.  This will tell you all you could ever want to know of what your rights are.  Just ask the librarian for a treatise on real property, specifically easements.

*Disclaimer. This is not legal advice, nor does it establish an attorney-client relationship.  Consult a local attorney for legal advice.
« Last Edit: March 01, 2011, 07:51:15 AM by Squirl »

Offline bayview

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Re: Need suggestions . . . Roadway easement liability.
« Reply #2 on: March 01, 2011, 05:46:56 AM »
Squirl

   Thanks for your response.   I liked your idea about the ‘Privately Maintained” road sign.   But, wouldn’t I be setting myself up for a lawsuit if there was an accident or injury?   Acknowledging that the I maintain the road could be also construed that I am liable for more than just its maintenance.
   
   My biggest issue is the liability.   It has been suggested that I put up signs “Not responsible for accidents or injuries“.   Will these signs actually limit my liability?

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    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #3 on: March 01, 2011, 06:06:12 AM »
Maybe.  I don't know the state you live in or its laws.  Generally there is a distinction between invitee, licensee, and trespasser.  I would check with a local law librarian.  I would think that the definition comes down to whether the person is an invitee - you have given them permission, or trespasser - you have not given them permission.  Many states pass laws to limit liability on landowners with easements.

Offline MountainDon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #4 on: March 01, 2011, 06:24:56 AM »
Do you really need the land the easement covers? Do you use that lane for your own purposes? If you don't really need it how about asking the neighbor if he wants to buy the strip. Or even give it away to him.  ???

Just because something has been done and has not failed, doesn’t mean it is good design.

If you didn't have the time or money to do it right in the first place, when will you get the time and money to fix it?

Offline bayview

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Re: Need suggestions . . . Roadway easement liability.
« Reply #5 on: March 01, 2011, 06:30:23 AM »
Do you really need the land the easement covers? Do you use that lane for your own purposes? If you don't really need it how about asking the neighbor if he wants to buy the strip. Or even give it away to him.  ???



Yes,
   My garage also accesses the easement . . .

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    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline rocking23nf

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Re: Need suggestions . . . Roadway easement liability.
« Reply #6 on: March 01, 2011, 07:19:03 AM »
you should draw a small simple diagram so we can better understand the setup. I know I am confused.

Offline MountainDon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #7 on: March 01, 2011, 07:48:20 AM »
Sounds like he has a (long) driveway on his side of the property line that provides access to both garages.  Easement on that drive down the property line to permit the neighbor access to a garage that someone, some time ago, was built or placed incorrectly. And now it's a done deed.  :(

Just because something has been done and has not failed, doesn’t mean it is good design.

If you didn't have the time or money to do it right in the first place, when will you get the time and money to fix it?

Offline glenn kangiser

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Re: Need suggestions . . . Roadway easement liability.
« Reply #8 on: March 01, 2011, 09:03:58 AM »
What Squirl says agrees with what I have read regarding easements - of course it should.... he knows his stuff.

I read that it is illegal to make a hazard on an easement that is in place when you buy the property and you are liable for the hazard you create, such as a wired shotgun - etc.  It is a legal easement for the neighbor and you agree through your title to allow it.  I have also read that you can gate it and give the others with access a key if you own the property.  You are not restricting their access - just protecting your property while still allowing them access.  

If it is only to the garage, why should his guests need to go there anyway?
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Offline BassLakeBucki

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Re: Need suggestions . . . Roadway easement liability.
« Reply #9 on: March 01, 2011, 09:56:39 AM »
I am confused about easements in general. What is in it for the property owner except for annoyance, liability and worry. Can a property owner receive payment for the creation of an easement if another person needs it? Who creates a road and maintains it?

I have a property with easements on two sides. One is a “drive” to complete the circle of the private road that our properties are located on. This drive is rarely used and I do not maintain/improve it specifically to discourage it’s use. I would like to block it but am not sure what that would stir up. This drive appears on the plat map with the road name of the rest of our private road. It is on my property, though. There are other lots next to this drive that could someday want to use it for access. I do not want the responsibility to improve and maintain it.

There is second easement making my property a corner lot. This easement only exists on the plat map, in reality, it is still woods. It is in place to provide access to 2.5 acres behind our lot but a road has never been created. I would like to think that I am not responsible for creating a road if that property owner decided to improve his acreage. We would like to buy that 2.5 acres but have never scraped up the money.

The above lot is behind our lakefront cottage and we bought it for the sole purpose of keeping others from building on it. I knew these easements were there, I just don’t know what my rights would be if someone decided to pursue this.

Easements, what’s in it for the property owner?

Offline MountainDon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #10 on: March 01, 2011, 10:33:32 AM »
When an easement is properly documented with the county all questions about size, who gets to use it, who is responsible for upkeep and so on would be documented. When it is not properly documented, that's when lawyers get involved to sort things out. The newer ones I've seen in our county are laid out quite well, very clearly. A lot of the older ones make money for lawyers whenever a dispute arises.
Just because something has been done and has not failed, doesn’t mean it is good design.

If you didn't have the time or money to do it right in the first place, when will you get the time and money to fix it?

Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #11 on: March 01, 2011, 10:54:03 AM »
A lot of the general concept comes from the idea that everyone should have access to their land.  If you trace many titles back far enough they will have been part of huge tracts of land.  As these are subdivided easements are created, sometime explicitly, sometimes implicitly.  Don has it right, it helps to get things well written and recorded with the county at the time of the purchase.  In my research in buying a property in NY, I found that there is an implicit easment through any property that was subdivided.  So if someone cuts off the back half of their property there is an easment through the front.  This can get very sticky as properties change hands over the years.  Even with this knowledge, I chose to avoid properties without explicit well recorded access.  The length of litigation and risks in litigation simply weren't worth it.

Offline MountainDon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #12 on: March 01, 2011, 11:10:42 AM »
Our county will not proceed with the subdivision of a property unless it has a recent survey with markers in plain site (they check) and all that documentation listing responsibilities, etc. Somebody in government got smart and got it right.  There's a case about an old property line and easement dispute in the village below our mountain property that has been going on for over a year.
Just because something has been done and has not failed, doesn’t mean it is good design.

If you didn't have the time or money to do it right in the first place, when will you get the time and money to fix it?

Offline bayview

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Re: Need suggestions . . . Roadway easement liability.
« Reply #13 on: March 01, 2011, 11:25:43 AM »
   Again, thanks for all your responses. . .

    MtDon:   The easement document really isn’t properly documented.   Unfortunately, the easement doesn’t describe anything but the physical location.   Basically a 30 ft easement on part of the western side of my property.   Their isn’t anything in the description that states who is liable for maintenance, etc.

   Making the easement a public right-of-way may reduce my taxes and liability.   It would also create more traffic.   Besides our county is in financial trouble and wouldn't want any more road maintenance.

   Glenn:    I can put up a gate and give him a key only if he agrees to it . . .    Pretty doubtful if “signs” are a nuisance to him.

   A client-friend today says I should remove the “offending” signs. . .    That the letter I have received from his lawyer is a “get out of jail free card” as far as liability.    That the signs I had been placed was to limit public traffic and liability.   That the neighbor and his guests have never been restricted access.    (They never have)   The neighbor now has accepted total liability for himself, friends and anyone else who may be in an accident of injury.   He now has accepted full responsibility since I am not able to restrict entrance through the easement.   Any thoughts?



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« Last Edit: March 01, 2011, 01:17:16 PM by bayview »
    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #14 on: March 01, 2011, 12:43:53 PM »
I don't know about the get out of jail free.

This raises more questions than it answers for me.  Where are the property lines?  Does the easement access a property behind your property or his?  If so, does this property have road access on any other side?  It seems like a completely pointless easement.

 This is where I deviate from most other people.  I would put up a gate and tell him to sue me.  I am much more comfortable in court than most people, and I figure, this way a judge sorts it out and all the questions involved.  Personally I would take the position that the easement is for the properties behind you (I assume) and not meant for him.  He could counter that even if it wasn't for him, this claim was forfeited by his or prior owners allowed use.  This seems like a weaker claim in the light that he can gain access across his own property and he has only owned it for a short time.  You could counter that the signs were always posted and you never gave permission to the prior owners for use.  Then this case will degrade into a mess of legal and factual arguments.  (See how lawyers make so much money) In my experience if both sides have a valid claim in a dispute, and there is a grey area, neither are awarded attorney's fees.  This is in general, and there are a few exceptions.  In my jurisdiction and most common law cases I have read, if he has access through his own property he wouldn’t have a leg to stand on in court cutting across your property.  This can vary by area.

In my area there are many public rights of way and the county has no obligation to maintain any of them.


Oh remember, nothing prevents you from getting sued.  Anyone that feels they have been wronged has the right to walk into court and sue.  The question is will they prevail.  A way to possibly get some free legal advice is to contact your homeowner’s insurance company considering if you do get sued they would probably be on the hook.

Offline bayview

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Re: Need suggestions . . . Roadway easement liability.
« Reply #15 on: March 01, 2011, 01:28:58 PM »
   I have updated the picture showing the property lines . . .    I own two lots.    The easement was for my back lot and another behind it.   I am pretty sure that the easement wasn’t meant for the neighbors access since he is not landlocked.   Unfortunately, the garage addition onto his house has been there as long as the easement.   I’m sure he would claim adverse possession. . .    Even though there isn’t a right of necessity.

    My problem is the my liability from him and his guests accessing the easement.

   Would a "Not Responsibe for Accidents or Injuries" sign be helpful?
  
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    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline duncanshannon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #16 on: March 01, 2011, 02:14:46 PM »
+1 vote for a gate!

I'm looking at land that has a private road (and utilities) easement. its drawn on a survey, described in size/shape, defined how it can be used and defines how it gets managed/maintained.  In this case, its an LLC that has been established explicitly to manage the road/utilitiese easement and not to manage other covenants. 
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Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #17 on: March 01, 2011, 02:37:29 PM »
Probably, It wouldn't hurt.  

This new information would actually give me more reason to put a gate up.  The easement looks like it was clearly for your property only and would probably make you the one liable for it because you own both properties.  I can see what your fear of liability stems from.  My view is that he has no legal right to use the easement other than that you let him or allowed the person before him.  I would let a judge tell me that he has access and clearly outline it, making him responsible.  What happens when he sells it?  Has his demand waived liability for all future owners and guests?  What happens if he subdivides and sells the back half?  What happens to his guest?  I don't see how the guest waived his right to sue you through counsel. A judge telling you that he has access to it and he is responsible for his guests is a lot different than you letting him have access to it because he may sue or has had his lawyer demand you take down a sign.  I don't see how if someone demands access to your property through a lawyer and you allow them access; that this does not make them an invitee and you still liable.  Again see my previous post, this option isn't for everyone.  I would think about calling your insurance company first and see if you can get a free legal opinion through them.  

Avail yourself of your rights.  Communicate these clearly to your neighbor and his lawyer.  The lawyer will see big $ signs, and if he is ethical, he will communicate that to his client this is going to get very expensive, very quickly.  Hopefully your neighbor will realize this is going to cost him a lot of money and he could end up losing to boot.

  I would keep the signs and put up some no trespassing ones too.  This way it is clear that you are not the one giving permission to them.

Offline bayview

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Re: Need suggestions . . . Roadway easement liability.
« Reply #18 on: March 01, 2011, 03:11:27 PM »
   Sounds less expensive to sell the property and cut my loses. . .

   Thanks for the advise!

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    . . . said the focus was safety, not filling town coffers with permit money . . .

Offline muldoon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #19 on: March 01, 2011, 03:23:17 PM »
I agree with the tell him to pound sand and put in a gate with a key.  If he does not have explicit access in the easement documentation, tell him it is by approval only and he has lost his approval.  His options are to pay 20-50k in lawyer fees and sue you, or pay the 2k to put in a driveway for his guests.

I am certainly not a lawyer and this is not legal advice.  It is however what I would do with a jackass neighbor. 


Offline UK4X4

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Re: Need suggestions . . . Roadway easement liability.
« Reply #20 on: March 01, 2011, 10:25:30 PM »
Easements....something I learn't after buying my internet bargain !


Seemingly with my 10 acres the land division was logged with the city, the roads were drawn but never logged with the county

The three land owners the road crosses basicly said no access is allowed.......after some pressure and the threat of court

The allowed access by ATV.......they did not mention however wether it was OK to use brush clearer on the back ......so maybe next year a 4x4 will fit down the track !

It had been buldosed road width nack in the 80's and is now only 4ft wide..........

Easement basicly means the cited property owner has the right to access his property across yours...in the location mentioned.

There is no reason it cannot be gated, as long as he can open it.

If he complains install a free range billygoat on your land....he'll soon put up a fence ! and stop openning the gate

Offline rwanders

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Re: Need suggestions . . . Roadway easement liability.
« Reply #21 on: March 02, 2011, 12:21:53 AM »
Your potential liability? Much less than you imagine----just because someone is granted an easement does not obligate you to build or maintain a road or path. If you are really worried about your liabilities and/or rights, you should consult a good real estate attorney, in your jurisdiction, for an opinion. You can also purchase an "umbrella liability rider" for your homeowners policy---$1,000,000 liability coverage should be about $100 per year---a real bargain which provides good protection for all kinds of events. Standard home and auto policy coverage limits are woefully inadequate unless you have very minimal assets to protect. Bodily injuries in vehicle accidents in particular, can far outstrip the common 100,000 or 300,000 limits and if a plaintiff's award exceeds your insurance limits, you and all your assets of any kind become collection targets.

A little attorney's time is a small cost for some peace of mind.
Rwanders lived in Southcentral Alaska since 1967
Now lives in St Augustine, Florida

Offline Don_P

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Re: Need suggestions . . . Roadway easement liability.
« Reply #22 on: March 02, 2011, 02:55:14 AM »
It sounds like the easement was intended to access your back lot not his frontage lot. If so he is trespassing and should be treated as such. Get a lawyer and close the easement if at all humanly possible. I wish I had. Although we have 50% maintenance agreement I do all the maintenance and they do 90% of the wear and tear. When it's gravel time they are always broke. This is not unique in my experience, i've worked in places with the same problems. I'd try very hard to kick them off before they establish "their rights".

Offline duncanshannon

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Re: Need suggestions . . . Roadway easement liability.
« Reply #23 on: March 02, 2011, 04:02:30 AM »
Home: Minneapolis, MN area.  Land: (no cabin yet) Spooner, WI area.  Plan: 20x34 1 1/2 Story. Experience Level: n00b. 
Build Thread: http://countryplans.com/smf/index.php?topic=10784.0

Offline Squirl

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Re: Need suggestions . . . Roadway easement liability.
« Reply #24 on: March 02, 2011, 06:37:20 AM »
UK4x4 you have it right.  A private easement is usually just legal agreement that one property owner can cross another person’s property for access.  This is usually only created when a property subdivides and does not have public access. Like in Bayview’s case, it was in case he ever sold his garage lot, the person buying the garage lot would not be land locked.  It is generally for no one else, unless it clearly states it. These are general brush strokes and can vary by locality.  Bayview's easement is actually better than some that I have seen.  At least his easement outlines that it is 30 ft. wide.  One of the key problems I saw when shopping for land was that when many easements were formed it was before cars.  The language was usually property owner B has an easement for access through property A.    So the intended access was not outlined at all and meant for horse or foot traffic, not vehicle.  Also just because there was an easement, didn't mean that you had the right to improve it for vehicle access, such as cutting trees, trimming bushes, building a bridge, grading land, or filling holes. When I would look at the map Property B was actually through a half mile of woods, and I didn't have the right to build a road. 

This was another reason I was happy that I spent just a few hundred dollars on a lawyer when buying.  All of this was done for me and clearly written and logged with all agencies and insurance.  I still expect some litigation if/when I improve the road.  The neighbors will have to check there old titles that I have the right to come in and cut down their trees up to 30 ft from the road for improved vehicle access.  I expect some to be upset that the possibility of this was written in 25 years ago and no one has done it yet. 

Bayview, That just reminded me if you did have a lawyer at your closing, you should go back to him.  He should give you advice for free now, considering he should have told you these things at the time of purchase.