Right to Encroach on a Utility Easement

[TrappedSWPA]

My question involves an easement in the state of: Pennsylvania

My husband and I removed a rotted deck off the side of our home. When we went to the Township to apply for the permit to build a new one, they denied our request based on a Utility Easement. There is a stormwater line and sewer line and their Easement boundary comes within 7 feet of our foundation, making any legal deck useless. We have asked permission to redraw the Easement (at our expense) but they refuse to move it or renegotiate its boundaries.

Without a deck to replace the one that was there we will lose reasonable access to more than half of our land, due to the slope. Do we have any hope?

[jk]

No, you do not have any hope unless the deck was already in place when the easement was created. At least that would give you an argument that it was an existing condition at the time of the creation of the easement and replacing it would not be any further encroachment than they had already accepted.

You have no right to redraw the easement unless the owner of the easement agrees to allow it.

[TrappedSWPA]

Can we argue that since the Utility Company won't be able to access the Easement that we should have some rights on it? Also can we make a case that if they could access it (they could, if they damage a whole lot of property "upstream" and "downstream" along the Easement) our deck would never be in their way?

The Utility and Township met with my husband yesterday and they basically admitted there is no way they can get equipment onto the Easement. The Township never enforced any codes on the Easement for the last 40 years and the Easement is basically "Landlocked". Our neighbor planted two Oaks over 30 years ago that sit right above the Sewer Lines and on the other side of our property, the neighbor put in Pines, a fence and a hedge.

My husband (who works in construction) says that even if they managed to get a tractor up the hill and along the Easement our deck would not be in the way. The Easement is 25 feet wide and we only want to overhang about 4' of it.

We feel the Township and Utilities are saying "No" only because it is easier than saying "Yes".

[jk]

You are mistaken. They do have access to the easement.

Our neighbor planted two Oaks over 30 years ago that sit right above the Sewer Lines and on the other side of our property, the neighbor put in Pines, a fence and a hedge.

if the easement is needed by the dominant tenant, the planter of the oaks will have the material to install a new hardwood floor, the guy with the pines will have wood to make a pine derby racer, the guy with the fence will have a new view of the neighborhood and the guy with the hedge, well, I cannot think of anymore witty comments but the hedge will go away as well. Only if the easement documents allow such improvements AND the utility is required to replace them would they be replaced by the utility company.

My husband (who works in construction) says that even if they managed to get a tractor up the hill and along the Easement our deck would not be in the way

but that does not give you a valid argument to allow the deck. Who is to determine what would be in the way and for what reason? That is why there is a blanket: nothing allowed on the easement.

We feel the Township and Utilities are saying "No" only because it is easier than saying "Yes".

of course but saying yes would cause myriad problems with the township so to allow this would only be the beginning. Next thing you know, you want a bigger deck or the neighbor wants to encroach on the easement. If the township says no, there is support for a suit to demand they allow it. It is not wise to allow any encroachments.

[TrappedSWPA]

If the township says no, there is support for a suit to demand they allow it

Sorry, did you mean to say " there is no support for a suit to demand they allow it."?

Is there some other support?

[free9man]

Sorry, did you mean to say " there is no support for a suit to demand they allow it."?

Is there some other support?

No, he meant what he said. He was referring to the fact that if they let you encroach and then tell someone else no...that someone else has support (them allowing you to encroach) for a lawsuit to force it.

[TrappedSWPA]

OK, I see that now. If they say "Yes" to us, then all of our neighbors will have a case to make.

Apparently, the Township's stormwater line exits the Easement. Someone must have made a decision to change its route 20 or 30 years ago and never mentioned it to the person who was in charge of securing the Easement.

Do they get a "prescriptive" Easement across our property for that line?

Also, since there was an existing deck there that encroached (apparently by accident) for 20 years or more and neither the township nor the utility owner ever attempted to have it removed, could we argue Adverse Possession or Prescription upon the Easement ourselves?

Thanks so much for all your help so far.

[jk]

let's move backwards a bit.


the listed easement. Is it actually being used for anything? Would it be needed to access any utility lines?

the other huge problem is it is listed as a drainage easement. Does it channel water?

[TrappedSWPA]

The sewer line (owned by the Sewer Authority) is centered almost perfectly in the Easement. We're not sure how deep but they estimate it is 18' down.

According to the Township (who manages the buried storm water line) the two lines should be buried next to and parallel to each other but when they marked them it looks like the storm water line does not follow the Easement.

There is no surface water drainage through that area.

When we bought the home in 2001 there was a rotten deck that apparently encroached about 5'. We estimate it was built in '90. We are trying to track down the previous owner to see if it was permitted. The township says they have no record of a permit.

My husband tore it down last year, not aware of the Easement.

Thank you again

[jk]

Since it is actually being used for the purpose it was created, there is no chance of getting it vacated. The fact it is only 25' wide means you will not get it altered. When running excavating equipment, 25' is not a lot of room to move around.

We are trying to track down the previous owner to see if it was permitted. The township says they have no record of a permit.

I guess you got lucky since an unpermitted construction can cause you a lot of problems. It means it was not included in the assessment of the property. Often times there are fines for building without a permit also. As the owner you would have been liable for any of that. Your homeowners insurance surely would not have appreciated it either since there is an added liability with a deck. They tend to look poorly upon construction that is not built with the proper permits which mean it is built to code standards.

I cannot see anyway to get a permit to build. The township would be foolish to issue a permit as I mentioned before.