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  1. #1
    Join Date
    Mar 2010
    Posts
    5

    Question Perpetual and Exclusive Easement for Access

    My question involves real estate located in the State of: GA


    We just purchased a home which has an easment on our driveway. This did not show up in our title search, but has shown up on the plat.

    The neighbor that has this easment does need this to access their driveway.
    That I do not have a problem with.

    My problem is they are using the whole driveway, allowing their children to play on the driveway. And they are also parking in my yard beside the driveway.

    I have went to the county records office to find an actual recorded easemnt and the clerk could not find one. The only records we can find is the plat.

    Their easement on my plat states this:
    20' Perpetual & Excluxive Easment for access

    My questions are:
    1) Can their childen play on my driveway? If so, if they are hurt will I be liable?
    2) Does easement for access mean that that is all they are allowed to use it for?
    2) How can I stop them from using the whole driveway and my yard beside the driveway
    3) Does exclusive mean I can't use that part of my driveway? If so, shouldn't they have to pay for the upkeep and taxes?

    I really try to be a good neighbor and I'm trying to determine my legal rights before I contact them regarding this.
    It is better for all of us if we try to get along.
    I am really worried about my potential of being sued should their young children get hurt. They are around 3 or 4 years of age, and she just lets them roam with no supervision.
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  2. #2
    Join Date
    Jan 2006
    Posts
    27,034

    Default Re: Perpetual and Exclusive Easement for Access

    regardless of what I say, hang on for landsurveyor to comment as well. This is his thing and he often knows the laws and specifics better than I do.

    First, to the easement not being "on the deed"; I would suggest there was an inclusion on the deed that said something such as: subject to easements, liens, and encroachments of public record.

    what that does is include the easement (on the plat) by reference. Very common and acceptable.



    1) Can their childen play on my driveway?
    technically, no but arguing the point is not usually successful. It is similar to kids playing basketball in the road. It is not legal but it is not something anybody really wants to demand not be allowed.
    If so, if they are hurt will I be liable?
    that would not relieve you of any liability. If a child were injured, liability would be based on the facts of the incident and them playing in the easement is not going to make much difference.


    2) Does easement for access mean that that is all they are allowed to use it for?
    yes

    2) How can I stop them from using the whole driveway and my yard beside the driveway
    the whole driveway? Not sure what you are referring to with that. As to parking in your yard: start with simply asking. Then send a cease and desist letter. Then, since they are trespassing, you can do a couple things:

    call the police and report the trespass

    or

    if they are damaging your land, get an estimate for the repair and first send a request for payment. Then, if they refuse and you reallly want to push the issue, sue them.




    3) Does exclusive mean I can't use that part of my driveway?
    this is where LS might have a better idea than me but often (and this varies with state law), if an easement is "exclusive", even the servient tenant (you) have no right to use it.

    If so, shouldn't they have to pay for the upkeep and taxes?
    again, state law will rule but generally, the dominant tenant (the neighbor/user of the easement) is liable for either maintenance or the costs to maintain. Taxes are still going to be the responsibility of the servient tenant as it is still your property.

    regardless of what rights they have concerning the easement, the do not have any right to trespass onto your land outside of the easement.

  3. #3
    Join Date
    Mar 2010
    Posts
    5

    Default Re: Perpetual and Exclusive Easement for Access

    What I meant by the whole driveway is the easement is clearly stated 20'. the plat outlines the easement bounderies and shows it on the right side of our driveway. The driveway is much wider than 20' and is our driveway also, it is a shared driveway.

    They are parking on our side instead of using their side making it hard for us to get groceries, etc.. out of our car.

    Also if the easement is for access and I can be liable don't I have the right to tell them not to let their children play on my driveway? This really worries me as there is a hole in the concrete and we just paid cash for the home.

    We really do not have the money to repair this at this time and I don't want to be sued

    Thanks so much for your help! )

  4. #4
    Join Date
    Jan 2006
    Posts
    27,034

    Default Re: Perpetual and Exclusive Easement for Access

    E=BarbE2187;402073]What I meant by the whole driveway is the easement is clearly stated 20'. the plat outlines the easement bounderies and shows it on the right side of our driveway. The driveway is much wider than 20' and is our driveway also, it is a shared driveway.
    the exclusive portion of the description may actually preclude you from sharing a driveway but regardless, the other folks surely do not have any right to leave the easement and enter your property. Also, since the easement is stated as being for access, parking could arguably be precluded.

    They are parking on our side instead of using their side making it hard for us to get groceries, etc.. out of our car.
    since you are new to the area, I would suggest a talk with the folks and simply let them know where the easement ends and they are not to park or drive outside of the easement. As I said, parking could arguably be denied as well but that could get into a court argument to prove that and obviously, as you have stated, you are not in a position to do that at the moment.

    Also if the easement is for access and I can be liable don't I have the right to tell them not to let their children play on my driveway?
    as I said, a liability situation will be based on the facts of the case, not simply that the children were allowed to play within the easement.

    This really worries me as there is a hole in the concrete and we just paid cash for the home.
    I will try to find any controlling laws as to who is liable for repairs. Hopefully landsurveyor will catch this thread and take a look as well.

    We really do not have the money to repair this at this time and I don't want to be sued
    very undrestandable

  5. #5
    Join Date
    Mar 2010
    Posts
    5

    Default Re: Perpetual and Exclusive Easement for Access

    Thank you so so much for taking the time and answering all my questions. I am going to take your advice and talk to my neighbor.

    I am hoping that we can all act like reasonable adults, agree and get along.

  6. #6
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,340

    Default Re: Perpetual and Exclusive Easement for Access

    Thank you for the kind words jk.

    Let me start by saying that jk has covered most of the questions and I agree completely with his responses.

    Now to address a couple of remaining issues.

    The "exclusive" wording in the easement grant is uncommon but not unknown. It seems to be generally held that an exclusive easement does not automatically exclude the servient tenant and others, but gives the right to the dominant tenant to include or exclude as he/she wishes. Sounds like splitting hairs but that is my understanding of it.

    The easement is for "access" and it would include any reasonable use for coming and going to the easement owner's parcel. That would probably include all types of vehicular (vehicles normally allowed on public roads) and pedestrian access. But the easement is only for the stated purpose, and the easement owner could not, for example, use the easement for biking or walking which was for the purpose of exercise or recreation. It is most often held that an access easement does not include a right to park on the easement. Partying, playing, racing, etc. and any activities not related to reasonable right of access would not be among the rights granted in an access easement.

    I want to reiterate jk's comment about the 20' width of the easement. That is of course the limit of the easement. It is not twenty feet and an inch. Over time, the neighbor's use of your property outside of the easement area, if continued over time without your permission, and in a manner adverse to your right of ownership, could possibly ripen into a larger easement or even outright ownership of some of your property.

    Hopefully your neighbor will talk this over with you in a reasonable way. As for the liability issue you raise, I have no experience or qualification to answer something like that as a surveyor.

    Good Luck!

  7. #7
    Join Date
    Mar 2010
    Posts
    5

    Default Re: Perpetual and Exclusive Easement for Access

    Wow, I had heard that if you allowed someone to use more of the easement they could in time enlarge it because of use. Sounds unfair that in being nice you get screwed in the end.
    I am certainly going to enforce the 20 feet after reading this.

    Thank you so so much for all of your valuable help!

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