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.
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.
1) Can their childen play on my driveway?
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.
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?
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:
2) How can I stop them from using the whole driveway and my yard beside the driveway
call the police and report the trespass
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.
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.
3) Does exclusive mean I can't use that part of my driveway?
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.
If so, shouldn't they have to pay for the upkeep and taxes?
regardless of what rights they have concerning the easement, the do not have any right to trespass onto your land outside of the easement.
I am not an attorney and any advice is not to be construed as legal advice. You might even want to ignore my advice. Actually, there are plenty of real attorneys that you might want to ignore as well.