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Installing a Fence on an Easement

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  • 09-26-2017, 06:24 PM
    Jean5720
    Installing a Fence on an Easement
    My question involves real estate located in the State of: Michigan

    Our family has vacation property which the neighbor holds a right of way easement to access a shed and walkway that extends 3 feet onto our property. The easement is written as a 15 foot right of way to access and maintain a shed. I can't really explain what the neighbor thinks the easement means, I think he thinks the easement means he has total use of the property. He went past the 15 feet and buried his dog on our property complete with headstone. When I approached him and told him he did not have the right to do that he told me he had an easement.

    I tried to explain the easement was for walking to the shed and maintenance of the shed only. He said no, he had an easement.

    We are planning to put up a fence. As long as I leave him access to the shed and around the shed for maintenance am I OK in honoring the easement? He won't have access to his dead dog.

    Any advice on the buried dog? Don't want it on the property.
    '
    The easement says he has to maintain the shed. It is practically falling down. When it falls over is that the end of the easement? What do I do then?
  • 09-26-2017, 07:18 PM
    jk
    Re: Easement Advice
    The easement says he HAS TO maintain the shed?

    anyway, the easement is what it says it is. You can fence around the easement if you wish.

    If you post your land or otherwise give notice entering your land outside of the easement is not allowed you can report the trespass, if he does go onto your land outside of the easement, to the police as a trespass.

    If the shed collapses it would appear the easement would serve no purpose. You might try extinguishing the easement if you wish but realistically, if there is no shed, there is no authorized purpose to use the easement.

    to the dog; unless you use that particular spot of land, I really don’t see leaving it there as a big deal. Like all organic matter, it will decay over time and be nothing more than a skeleton and will cause no harm.
  • 09-27-2017, 04:57 AM
    Catmad
    Re: Easement Advice
    Do you have a survey showing the easement's dimensions and placement, and that the dog's grave is outside the legal easement? What exactly does the easement grant (verbatim)? If you have your ducks in a row, I would probably tell the neighbor that you are fencing the easement and to please remove dog and headstone if he wants access to the grave. That the headstone be removed, at least. I can see the headstone as being annoying when mowing or landscaping.
  • 09-27-2017, 01:39 PM
    Jean5720
    Re: Easement Advice
    Thank you! Yes on the survey. The survey was just done Sept. 1, 2017. We had a prior survey but the survey markers were pulled out. The survey shows the easement.

    We had "No Trespassing" signs posted. They were torn down and tresspassing continued. Now it is fence time.

    Glad I don't have to return the "dog." No problem with the headstone return.

    The easement states, " Grantor grants Grantee right-of-way for walk way and shed over the burdened property. " (The walkway was a few feet of brick patio next to the shed. It is now a grassy area, the grantee says the bricks are under the grass, but the latest survey does not show a walkway only a shed encroaching 2.9 feet on the property. I assume the walkway is no longer a consideration as it has not been maintained and it has become a mowed part of the lawn. The walkway was on the 2005 survey but not on the most recent survey). " The walkway shall only be used for access to and from a family residence located on the property.
    Grantee is responsible for walkway and shed maintenance and and shall not let either become unsightly. " (The shed is unsightly the walkway is now grassy lawn).

    I will have to measure how far from the property line the dog grave is. The easement only runs 15 feet from the property line. I believe the dog grave is about 25 feet from the property line and is nowhere near the shed.
  • 09-27-2017, 04:00 PM
    budwad
    Re: Easement Advice
    So the easement is a 15 foot wide path to a shed. Do the grant say how long the easement is or is it just the location of the shed either in the grant or the survey?

    When the shed falls down, there will be no shed but depending on how exactly the grant was written or how the survey depicts the easement may allow for another shed to be built within the easement. The other concern is was that grant in gross (granted to the present owner) or was it appurtenant (to run with the property).

    The problem with these types of disputes is that of land use and cost. If the shed and the grave are on property that you want to use (not just get off my property) then it may be cost-effective for you to eject the neighbor and try to extinguish the easement through a quiet title law suit. That is an expensive proposition and can easily take a year or two to resolve.
  • 09-27-2017, 09:33 PM
    Jean5720
    Re: Easement Advice
    The Survey shows only 2.9 feet of the shed is on the property. The brick walkway extended beyond that. However, the brickwalkway is now covered by grass and is not on the survey. Why a 15 foot easement was given I do not know. It is not needed.

    We have an easement to use the neighbor's boat landing. Our easement runs 15 feet wide over two 50 foot lots of the neighbor's property so that we can access the boat landing. I would rather extinguish both easements and be done with it. The neighbor, at this point, does not but once my whole family starts using the boat landing that might change. We have been away from the area but now my son is in the area going to college and will use the boat landing a great deal. We are planning on building a retirement home so we could be at that boat landing a great deal. We can make our own boat landing so it is not a big deal to us.

    The shed easement is appurtenant. It has no time limit.
  • 09-28-2017, 05:19 AM
    Catmad
    Re: Easement Advice
    This is new. " The easement only runs 15 feet from the property line." Does this mean the shed-encroaching neighbor has a 15 foot easement over YOUR land and "The walkway shall only be used for access to and from a family residence located on the property." How long is the easement? Where is "a family residence" located. Is it the same area you claim as an access to the neighbor's (the shed encroaching neighbor?) boat landing? How (verbatim) does your easement grant read?

    I wouldn't be so sure that the bricks are irrelevant just because they are covered with mowed grass.

    Have you taken all this to a local attorney for an opinion?
  • 09-28-2017, 07:51 AM
    jk
    Re: Easement Advice
    The bricks are irrelevant. The area in the grant is what is critical. A walkway does not have to be brick, stone, or anything in particular. A walkway is just that: a way you can walk upon.
  • 09-28-2017, 09:09 AM
    Jean5720
    Re: Easement Advice
    When the easement was created it was done so to address a shed and brick walkway that encroached over the property line when the Benefitted property was sold in 2006. The "walkway" was part of a brick patio that extended from the residence to and slightly past the shed. The shed was mainly on the "Benefitted" property. Only slighllty less than 3 feet of the shed is over the property line. The walkway was not intended for anyone to walk to get to anywhere, except to the shed it was more of a "patio" that was a continuous brick patio/walkway from the residence to and slightly beyond the shed. The brick patio (walkway) from the home to the what the easement is calling a "walkway" has been removed/covered with fill and is now lawn. It was a "structure" that was on a survey in 2005. It is not on a 2017 survey. The patio/walkway as a 'structure" does not exist according to the survey done in 2017. Only the shed appears on the 2017 survey. Please note the 2005 survey showing the brick walkway/patio and shed encroachment were the reasons for the easement to start with as the easement was written in 2006 to address the encroachment.

    The easement states that "As always this easement shall terminate if and when the owners of the Parcel to Benefit make changes to said lot which eliminate their need to use the easement conveyed to them.

    Given this statement in the easement I assume (and you know what happens when you assume) that they have forfieted the walkway (patio) easement. Therefore, I do not need to consider it when I install the fence, I only need to leave access to use and maintain a shed that is about 90 years old and will eventually fall down. I no longer have any idea where the brick walkway/patio is. So, I am guessing I do not have to consider the patio/"walkway" because frankly I have no idea where it is and it is not being used as it was when the easement was created.

    I do need to keep trespassers off my property with a fence per Michigan law. Posting has not worked.

    I must stay reading everyone's comments has really made me think through this issue and this has been very helpful. I have learned alot. Thank you. Keep the comments coming.
  • 09-28-2017, 09:22 AM
    budwad
    Re: Easement Advice
    Quote:

    Quoting Jean5720
    View Post

    The easement states that "As always this easement shall terminate if and when the owners of the Parcel to Benefit make changes to said lot which eliminate their need to use the easement conveyed to them.

    That language says that the easement is in gross. Meaning that when the shed is gone the easement is gone. If the shed is in such disrepair that it is falling down and not used, I would personally ignore it and just build my fence. I doubt the neighbor is going to go to court over a dilapidated shed.
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