Fencing Easement Area Until It's Terminated

[landowner_OK]

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.

[Stephen Calder]

Wow, that is an odd situation.

I know nothing about OK law, but in the southern states that I am licensed in, yes, it is usually permissible to fence across easements, provided that a gate is put in place. You can even lock the gate, but then you have to provide a key or combination to the rightful owners of the easement. The idea is to keep the general public out, but not hinder the legitimate easement users. In this situation, I'm not sure if that would help, as it appears the only users of this easement are the ones with the rights to use it.

This case speaks to due diligence and the value of title insurance. Title insurance basically insures that the owner who sold to you had full title in the land he was selling, something that isn't discernable from mere visual inspection. You indicate that you do have title insurance. Hopefully, you have your own policy, and are not referring to the one that the bank always has, which they get every time they mortgage a property, and for which you are indirectly paying for. The bank's policy may not afford you protection in this matter. The bank is only worried about their investment, the lot and the house, not your use of your property.

You indicate that you and your neighbors may try to have the court vacate the easement, just on principles of it's inequitable existence. You may also have a case against the person you bought from regarding disclosure. Obviously, in a complex case as this, you'll want to be guided by a local attorney each step of the way.

Goood luck and let us know the results.


Stephen Calder
Land Surveyor, not a Lawyer

[landowner_OK]

Thanks for your quick reply, Stephen. Even though we own and pay property taxes on the land that the easement now covers, their attorney's letter states:

"Only my clients have the right to use and enjoy [sic] of the easement area and any attempt on your part to fence off their easement to make the easement area a part of your back yard would be an unlawful interference of the easement that would give rise to injunctive relief and trespass damages."

So he is telling me that I don't have the right to "use and enjoy" my own backyard? Our lawyer told me that their lawyer is very vindictive and would file an injunction as soon as we start building the fence even if we have the right to fence it. I'm all for standing up to him and letting it play out. At this point, we aren't paying any attorney's fees, but they are, and I'm sure he will take all the money they throw at him, whether they can possibly win or lose.

[Stephen Calder]

Yes, there are lawyers who would play it that way, unfortunately.

But, as things stand right now, I would have to agree with their lawyer to the extent that you shouldn't interfere with their lawful and reasonable use of the rights conveyed to them by way of the easement. And from the description of the easement that you gave in your original post, any structures at all, built by you, are prohibited.

That's a really strange easement, you own and pay taxes on the land, but pretty much strictly for their enjoyment. I suppose you are allowed to use the area for your own recreation.... but only when they aren't around.

Stephen

[jk]

No structures, except for the fencing hereinafter described, shall be built, placed or installed upon the Easement Property.”

that means if the fence you are considering does not agree with the fence described, then you cannot build the fence.


Other than that, I saw nothing giving the owners of lot XXX exclusive use of the easement which means you can use the easement for whatever you want as long as it does not restrict the dominant tenants rights.

the other thing I would be concerned about is them moving their fence and building a pool. If their fence meets the description in the easement grant, they can move their fence. Unless there is something not seen here that gives them exclusive use, they cannot prevent you from using the easement which means, they have to provide a gate so you can access the easement.

In regards to their pool. make sure their pool is within the legal property line set offs based on their actual lot. An easement is not an extension of their lot when it comes to determining placement of a construct.

[Stephen Calder]

If I'm reading what he wrote in the original post right, then only the owners of the XXX lot can build the fence. The land owner cannot build the fence or anything else.

Stephen

[jk]

If I'm reading what he wrote in the original post right, then only the owners of the XXX lot can build the fence. The land owner cannot build the fence or anything else.

Stephen

I did not see where it specified who could build the fence. All I saw was it described what fence was allowed.

No structures, except for the fencing hereinafter described, shall be built, placed or installed upon the Easement Property.”;

that would apply to both parties so, whatever fence is hereinafter described is the only fence that anybody can build.

[LandSurveyor]

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.

We are the first owners of our home and bought in 2010.

So the easement was created and publicly recorded in 2001 and you, your attorney, mortgagor, title company, and those of your neighbors adjoining XXX Lot were unable to find it in the public records in 2010?

Putting the actual characteristics and enforceability of the easement aside for a moment, how did this happen to you? This is a serious disconnect in the purchase process.

[Stephen Calder]

JK,
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.”

Stephen

[jk]

JK,
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.”

Stephen

sorry about that. Yes, I missed that, even after you had posted and I re-read the original thread.

so, it would seem that only the other folks can build a fence but it must comply with the description in the document.