Clarifying Ownership of an Easement

[Cynthia Mitchell]

My question involves property located in the State of: Kentucky

My father-in-law had ownership of land and an easement that sits behind my property. The easement has been used by us as a driveway and we have 2 storage buildings that sit on part of it. My husbands brother owns the property on the other side of the driveway/easement and also uses it as such. My father-in-law sold the land behind us but retained ownership of the driveway/easement. However, it looks as if the deed included the easement as part of that land but the plat shows it as an easement. My father-in-law intended to leave my husband and his brother ownership of this easement in his will and that is why our storage buildings are on the side of the easement.....we had permission to do so at the time (approx. 20 yrs ago). The buildings in no way block the new owners from entering or leaving their property...they drive directly up the driveway with no obstructions.
The problem now is the property has been sold to another individual (approx. 1 yr ago) who claims he owns the easement/driveway and wants us to move our buildings and pay him for property damage where they sat. He sued us, my father-in-law, and brother-in-law and there was a hearing about a week ago that none of us were aware of....our lawyer gave us an excuse that he couldn't find our number to let us know about it. It appeared that the judge made a motion that the guy had an "ok to the title but question as to easements of D's remains open." Needless to say we feel as if our lawyer hasn't done a thing on our behalf and we can't seem to get him to talk to us as he says he is busy in court. We have been left hanging and don't know what to do. This easement/driveway was NEVER intended to be included in the adjoining property and had been in our family for over 200 years. I would greatly appreciated ANY help that anyone can give.
Sincerely,
C

[jk]

This easement/driveway was NEVER intended to be included in the adjoining property and had been in our family for over 200 years.

what was intended is presumed to be what is documented in the deed. If dad failed to sever that piece of property from the remaining lot prior to transferring it to another party, well, shame on him but the deed is done and you have no right now (or actually even then) to object to the transfer. Only your father could object on a basis that the deed was incorrect but even that would have been difficult at that time.


what it sounds like is dad sold the entire lot but created a formal easement on the land used as your drive. I suspect the easement is written with you as the dominant tenant.

how long ago did dad first transfer the the land to the first buyer and what did the that owner say about your buildings being where they are?

and by dad I mean father in law. I realize that error after typing and did't want to go back and change it everywhere.

[Cynthia Mitchell]

how long ago did dad first transfer the the land to the first buyer and what did the that owner say about your buildings being where they are?

The first buyer purchased the land approx. 22 years ago and at that time the deed that was made up did not convey what was on the plat. The plat showed the easement with rights given to us and to my brother-in-law that lives beside us. And on the plat it looks as if my father-in-law retained ownership but it is confusing to look at. We just found out this information today and the error actually started with the first buyer. The bank that had the deed papers made up left this important information out and that is why we lost ownership. No one caught it until now with the 3rd buyer! The previous owners never questioned my father-in-law and abided by his wishes and came to ask his permission when they wanted to use the driveway for logging on their property, etc... Not once did any of the other owner's question the placement of our storage buildings, as I guess it wasn't blocking their way so they didn't feel the need or just didn't know about the error.


There is light at the end of the tunnel however....our lawyer did a little bit of inquiry and found that my father-in-law still has the only right to use the driveway/road at the top of the mountain in which the 3rd buyer has been using since he purchased the property. He wants both entry's and maybe we can use this as leverage to negotiate an agreement we can all live with.

Any other suggestions/advice?
Thanks so much for your time!
C

[jk]

The first buyer purchased the land approx. 22 years ago and at that time the deed that was made up did not convey what was on the plat. The plat showed the easement with rights given to us and to my brother-in-law that lives beside us. And on the plat it looks as if my father-in-law retained ownership but it is confusing to look at. We just found out this information today and the error actually started with the first buyer. The bank that had the deed papers made up left this important information out and that is why we lost ownership. No one caught it until now with the 3rd buyer! The previous owners never questioned my father-in-law and abided by his wishes and came to ask his permission when they wanted to use the driveway for logging on their property, etc... Not once did any of the other owner's question the placement of our storage buildings, as I guess it wasn't blocking their way so they didn't feel the need or just didn't know about the error.


There is light at the end of the tunnel however....our lawyer did a little bit of inquiry and found that my father-in-law still has the only right to use the driveway/road at the top of the mountain in which the 3rd buyer has been using since he purchased the property. He wants both entry's and maybe we can use this as leverage to negotiate an agreement we can all live with.

Any other suggestions/advice?
Thanks so much for your time!
C

the plat map is not dependable when attempting to discern specific lot lines. The deed will control and since you do say it was written that what was used as the drive is now an easement, then it is an easement.

as to leverage: sure. Your buildings have been encroaching on the easement for 22 years. Since you have spoken with a lawyer already, I'll leave it to you and him to determine if your encroachment qualifies as being considered a prescriptive easement. If it does, the new owner would not be able to make you move the buildings. Even if it doesn't and you would have to move the buildings, he still has no claim for damages as he purchased the property with the encroachments in place and any damage to the land under the buildings would not be something he could claim.

[LandSurveyor]

If the deed refers to and includes the plat, the plat will control. If the plat is the only extant evidence of an actual survey, even of not referred to in the deed, it may be given significant weight by a court.

As it appears that the buildings have been in place prior to the transfer of 22 years ago and have been in place since that time possibly adversely there may be a variety of legal theories an attorney could advocate to leave them in place.

This should have been posted under the easement section of the forum.