Unrecorded Easement

[earlrengland]

My question involves an easement in the state of: Indiana

Bought a property in 2009 that included a 50ft easement along the Eastern edge of property on the purchase agreement. The seller has abused this "easement" by parking, allowing others to use my property, his livestock is always in my yard because he doesn't have the proper fencing and has also given permission to the utility company to bury electrical lines through my yard going back to his property. When I confronted the seller, he claims that it's his easement, and that he can do anything he wanted to it. The purchase agreement only said 50ft. There was no other description i.e. size, scope or type of easement listed. The seller also failed to record an easement on the property and after a search by the county auditor, it was concluded that an easement has never been recorded on my property. The seller also signed the deed in front of a notary, claiming the accuracy of the deed. The deed has no easement on it as well. The title company has since removed any easement verbiage from my title, because again, they couldn't find a recorded document for an easement. He is not landlocked, and actually has a 200ft frontage to access his property. I was advised to go ahead and gate off my property to keep him from abusing it any further. Of course he got a lawyer, and wants to argue the purchase agreement on an easement with no description other than 50ft on the Eastern edge of my property. My lawyer seemed to think that the seller can ask the court to amend my deed to include the easement, but the easement has no actual legal description other than 50ft. There is no mention of an easement on any of my mortgage documents, other than the purchase agreement. How strong of a case do I have against this guy in sealing off my property from further abuse? I've also taken pictures of the abuse, and have about 50 pictures. Thoughts?

[Mr. Knowitall]

If you agreed to convey to the seller a 50' easement when you purchased the property, that's what you agreed to do. If you chose not to put any limits or restrictions on the easement or its use, then you didn't put any limits or restrictions on it. You can discuss with your lawyer whether you have a plausible argument that some restriction is implied.

You were advised to gate the property by your lawyer? We're not in a position to second-guess your lawyer.

[KeyWestDan]

Easements have to be VERY specific or there will be trouble.

I just read a civil case where the party with a vague easement landscaped, put in an irrigation system, put up a big gate, intercom system and lighting. Another property owner on the easement sued. They both spent tens of thousands of dollars. The court ordered the gate removed, but that was all, after everyone spent tens of thousands of dollars.

Be careful what you wish for, you just might get it.

[jk]

Bought a property in 2009 that included a 50ft easement along the Eastern edge of property on the purchase agreement.

was the person that sold you the property creating an easement at the time of the sale? If so, you wouldn't find any recorded easements prior to what results from your sale.

what really doesn't make any sense is this:

The title company has since removed any easement verbiage from my title, because again, they couldn't find a recorded document for an easement.

first, a title is an abstract item. There is no physical title that has any verbiage. There is an abstract of title which is a report documenting the chain of title through the years and encumbrances registered against the title. If the seller of your property created the easement in 2009, there wouldn't be any mention of an easement (at least this one) in the abstract of title you obtained from the title company.

There is no mention of an easement on any of my mortgage documents

irrelevant

He is not landlocked, and actually has a 200ft frontage to access his property.

irrelevant

The purchase agreement only said 50ft.

most purchase agreements do not list such things in great detail. They typical include items by reference to other documents.

his livestock is always in my yard because he doesn't have the proper fencing

for fun I would put up a sign that says: Warning; trespassing livestock will be eaten

has the neighbor shown you some document granting him an easement? Depending on several things not known here, the statement of the purchase agreement could be very important. If you agreed to purchase the property encumbered by an easement, then you bought the land encumbered by an easement if there is any documentation supporting the creation of the easement. If somebody comes up with a document created prior to your purchase of the property granting an easement to the neighbor, it is likely that can be enforced. The reason it can be enforced is that you were given notice that there was an easement and the error in the deed failing to include it cannot remove a right the neighbor already had.

did the seller use a warranty deed to transfer the property to you?

What is the sellers saying about all of this?

[earlrengland]

The seller did use a warranty deed. There was no grant of easement signed by me at the time of closing. I read that Indiana easement law states, " An easement should specifically identify the location and dimensions of the easement, as well as the permissible or intended use of the easement" None of this was met. If it can be argued that I signed the purchase agreement with the 50ft easement on it, than I can argue that since it only states 50ft on Eastern edge of my property, that the seller only has 50ft access from the road seeing as the length or purpose of easement was never mentioned. On top of that, he has cows that are getting ready to birth, which makes them even more dangerous to my children when they get out. I won't wait for something to happen to my family before I take action against this. Also, the seller claimed no easement on the sales disclosure as well, so I have a deed with no easement, a sales disclosure with no easement, no easement verbiage on the title. So 3 forms with no reference to an easement, and I'm to understand that the purchase agreement, which "vaguely" has easement verbiage on it, trumps all others? Sounds ridiculous to me.

[jk]

earlrengland;523934]T There was no grant of easement signed by me at the time of closing.

you wouldn't sign a grant of easement unless you were granting the easement. That is why I asked about the seller creating one.

I read that Indiana easement law states, " An easement should specifically identify the location and dimensions of the easement, as well as the permissible or intended use of the easement" None of this was met.

should means should, not must. Shall means must.

If it can be argued that I signed the purchase agreement with the 50ft easement on it, than I can argue that since it only states 50ft on Eastern edge of my property, that the seller only has 50ft access from the road seeing as the length or purpose of easement was never mentioned.

the problem with that is; the intent is determined by the grantor.

On top of that, he has cows that are getting ready to birth, which makes them even more dangerous to my children when they get out.

then you'll have veal on top of mature beef

I won't wait for something to happen to my family before I take action against this.

ok

Also, the seller claimed no easement on the sales disclosure as well, so I have a deed with no easement, a sales disclosure with no easement, no easement verbiage on the title.

there is no verbiage on the title because the title is an abstract entity. There is no written title/ You did agree to purchase the property with an easement attached regardless what anything else says.

So 3 forms with no reference to an easement, and I'm to understand that the purchase agreement, which "vaguely" has easement verbiage on it, trumps all others? Sounds ridiculous to me.

let me explain how this could work:

seller decides he is going to sell his property. seller and neighbor discuss and easement (50 ft easement on west property line. Seller states; when property is sold, I will create an easement and grant it to you in the same closing as the one between the buyer and myself.

Seller offers property for sale subject to that intended easement. Buyer (you) offer to by property subject to the easement (buy/sell agreement).

So, when property is sold, somebody (whoever the seller hires to write the grant) creates the easement grant. Seller signs it and gives it to closing agent to record along with the deed he delivered to you to convey title to you.

so, we now have a legally created easement you are subject to. As to the disclosure document; technically, you were given notice of the easement. If seller says; there are no additional easements other than the one buyer is aware of per the buy-sell agreement. He still has not been deceptive.
as to the deed; I would have to read all the germane documents to be able to say if it could be in there or not. There are often ways of including things such as easements without specifically stating it is regarding an easement.

so now, we get back to: has anybody presented a document creating the easement? The answer to whether there is one or not is critical to this issue. I understand your position. I'm not saying you are wrong or right but it is still not clear if there is actually an easement or not and if there is, what rights the dominant tenant enjoys due to the easement.

[earlrengland]

To answer your question, no, no one has presented any evidence or document that an easement was created. There is also no easement documented on the survey.

[LandSurveyor]

Once the deed was delivered and accepted, the contract for sale (purchase agreement) was quite possibly merged out of existence.

If that is the case, there might be no recourse to the purchase agreement to force a written easement.

[earlrengland]

That is exactly what I wanted to hear! Hopefully my lawyer sees it the same way. I just found that on the purchase agreement dated 8-17-2009, that addendum #1 has the easement verbiage, but when I went through my paperwork just now, I found another addendum #1 to my purchase agreement dated 9-14-2009 that has the easement verbiage missing. I would think the newer addendum should be the one that's enforced if any questions are raised.

[jk]

Once the deed was delivered and accepted, the contract for sale (purchase agreement) was quite possibly merged out of existence.

If that is the case, there might be no recourse to the purchase agreement to force a written easement.

I agree but if there was a grant (which OP just stated that so far, there appears to be none), the easement could very likely be enforceable.