My question involves an easement in the state of: Oklahoma
In January, I became aware of a 30' easement on the back of my 100' wide X 135' deep lot which allows the neighbors to the north, in a different subdivision (I'll use XXX as their name) access to my property for ridiculous reasons. It states: “The easement shall be for the purposes of landscaping, general recreation and uses associated with the use of the XXX Lot. No structures, except for the fencing hereinafter described, shall be built, placed or installed upon the Easement Property.”; and “The record owners of the XXX Lot may install a fence upon the Easement Property”. The easement can be terminated or modified “only by a written instrument executed by the record owners of the XXX Lot.” This easement affects myself and both my neighbors on each side because the XXX lot is the width of our lots. I became aware of this only because we got a puppy and I called a fence company to come measure for a fence (Our covenants only allow a 4' vinyl coated chain link fence) and was met by the neighbors with the easement in hand. They told me I couldn't fence my property, but they were going to move their fence 30' onto my property so they could build a pool in their yard!
I immediately started doing research and found that the original owners of the lot (and neighboring property) for years abutted a large empty plot of land to the south (~9 acres) that was to be eventually developed as their subdivision's recreational area until it was sold in 2000 at which time the new developer began plans to build homes. They did not want to have homes built behind them, so they threw up a lot of road blocks (petitions, city council hearings, etc.) to stop it until the developer agreed to sign this easement allowing them access to this 30' of what would eventually be 2/3 of my backyard.
Here's the shady part: The easement agreement was signed by both parties on March 7th, 2001. The new subdivision was platted and the plat was filed with the courthouse on August 1st, 2001 then the easement agreement was then FILED on August 16th, 2001. Therefore, the easement does not show up on the subdivision plat, and did not show up on any of our mortgage plats when the homes were built or sold. In other words, the developer gave them what they wanted and then covered it up so he could still sell the entire lots and not the "patio homes" the existing homeowners thought would be built behind them. We are the first owners of our home and bought in 2010.
The three of us "servient" landowners are in agreement that the easement has to be vacated, that it serves no purpose and are going in together to have it vacated. I tracked down the original XXX lot owner and he admitted that it was only set in place because they didn't want houses built behind them and it was a "settlement" with the developer. However, the current XXX lot owner's position is that it's his right to have his 4 children play in my yard, and he bought that right when he purchased his home a year ago. Just because I didn't know about it, is not his problem, but mine. I don't disagree with that. It is not in my title insurance, and I can certainly file a claim, but my goal is to have the easement permanently removed, not have the title company buy my house back. We have asked him nicely to voluntarily vacate the easement, but he will not and so now we are going to have to file a lawsuit to have it vacated.
Here's my question: Until the easement is (hopefully) vacated by a court of law, do I have the right to fence by property? I only have to allow them "access", which can be gained by the gate I will have installed next to my house. They have a HUGE lot which is partially fenced, and have no reason to use my back yard at all, but since this started, they routinely send their kids to play in the back 30' our yard. I'm afraid if I grant them access through the gate, they will let our dog out just for spite. Also, what if one of their kids climbs a tree that's in the 30' easement, falls and breaks their arm...can they sue me since I'm the landowner?? This does not seem right at all!
They evidently saw the fence estimator out measuring again last week because we got a letter from their lawyer yesterday warning us that we couldn't fence our property and deny them access. To me, "access" is a very vague term. Also, I'm about to build a deck onto our house which is also in violation of the easement which states a structure cannot be built within 30' of the 30' easement (our house is 26' from the easement, so it's very existence is already violating this fraudulent document!).
Thanks in advance for any words of wisdom.