New Easement Rights

This is in Arkansas.

There are two 20 acre plots for sale. Someone already bought the one closest to the road. There is an easement along the property line of the first 20 acre plot, a new easement. There is also a fence around the first 20 acre plot on the property line.

My first question is, who is responsible for cutting the fence where the easement crosses the fence, property line, on the first 20 acre plot? Would the landowner of the first 20 acre plot be responsible since that is restricting the other guy from getting to his property behind the first 20 acre plot?

Also, if the landowner of the first plot, that has a fence around it already, wants a gate where the fence has been cut, who is responsible for the cost of the gate?

The easement does not explain much, the deed basically explpains the boundaries. After consulting a lawyer he said that the guy in the back pretty much has ability to do whatever in that said area, except park there. He said that if there are trees on the easement, then they are restricting access and can be cut down.

There is not going to be a house built on the back 20 acres, it is just owned for the trees and harvesting those trees.

I looked and researched but most everything I found pertained to existing easements.

Thanks for the help, Greenhead

"The other guy" being who? The seller, or the person who hasn't yet bought the land from the seller? If you're considering bying the land, I suggest having the seller work things out with the owner of the front lot before you buy.

The property close to the road has already sold. The back property is still for sale. I am not interested in buying the property, this is for someone else. Like I said the front has already sold and there is an easement granted across the front property to the back property. It is a new easement, there is no trail or road to the back property yet.

It is an access easement only, ingress and egress. There is nothing on the deed or any kind of contract about maintenance or responsibilities of either party.

So, that being said if my friend buys the back property, who is responsible for cutting the trees on the easement and supplying gates for the existing fence? The fence is already there and whoever buys the back property will have to cut the fence to gain access to the back property. So if the landowner wants gates, who buys them?

Another question, if someone buys the back property and in the winter months causes damage to the easement in the form of ruts, who fixes it? I assume the guy that makes the ruts fixes the ruts?

Thanks

Technically, if the language is vague or non-descriptive, the new buyer can't even build a road. They can only drive across your land to gain access to the back property i.e. ingress and egress only.

The dominant estate (new owner) would maintain the easement. This is common law unless the easement agreement specifically states otherwise.

The dominant estate would be responsible for repairing any damage to your fence. Gates, etc., if not in the easement language, are strictly another agreement between the two of you. In my opinion.

Ok, I have a copy of the easement and it reads as follows:

"That for and in consideration of the sum of One Dollar, to us cash in hand paid, and other good and valuable consideration, the receipt and sufficiently of which are hereby acknowledged, we, the Grantor, do here by give and grant unto, the Grantee, and unto the Grantee's heirs and assigns forever, the right privilege and easement to construct, maintain and use a road for private ingress and egress over and across the following described property...."

Also:

"It is understood ,and the Grantee agrees, that the Grantor herein, and Grantor's heirs and assigns, shall have the right and privilege to use the said road concurrently with the Grantee so long as the use thereof does not impair or interfere with the use of said road by the Grantee..."


So, this is a brand new easement and the property that the easement crosses, the Grantor's, has a fence around it.

Who is responsible for cutting said fence and putting a gate in its place since the Grantor has cattle?

Thanks

The Grantee.

The Grantor conveyed the easement. The Grantor cannot block the easement, therefore the Grantor must remove his property from the easement: the fence. Also the Grantor cannot install a gate unless the Grantee approves it. The fact that the Grantor or current property owner has cattle does not matter. The front property owner should move his fence across the easement if they want to keep the cattle enclosed.

The Grantee may want a gate installed anyways to provide additional security. The easement allows for the building of a road, therefore the Grantee would have to pay to build and maintain a road. Any trees in the easement must be removed as well...at the Grantor's costs- again the trees are Grantor's property unless permission is conveyed to the Grantee.

The plain language of the easement grant allows us to make some conclusions about the intent of the parties.

First, it's a non-exclusive easement, and is specifically made so. That means that the concept of fencing off the easement from the grantor, his cattle, his heirs and assigns,etc., is a complete non-starter without the express permission of the grantor. The grantor is reserving all of the rest of his rights to the property not inconsistent with the grant of ingress egress.

Second, the easement is provided "as is" in it's existing condition which is apparent from the express permission to build a road to the grantee. Or not, just as the grantee wishes. If the grantee wishes to build a road, with the usual appurtenances to a road, such as gates, grading for drainage purposes, etc. it will be the responsibility of the grantee.

Correct me if I'm wrong. It seems that as of now the Grantor is restricting access of the Grantee. So, the fence has to be cut to allow the Grantee access to the easement. At the point the fence is cut the Grantee has no need of a gate.

Not to sound like a jerk, but the Grantee could care less if the cattle get out or stay in, not the Grantee problem. Now really that's not true, but do you get what I'm saying?

It just seems to me that the Grantor is the one who needs the gate, why wouldn't he be the one to pay for it? Since there is no separate contract or it does not mention the gate issue on the easement, does that expense not fall to the Grantor?

In reality we are only talking about a couple hundred dollars, but I just want to know who is to pay it?

Thanks

Go ahead and cut a fence in Arkansas.

Apparently some folks think that an ingress-egress easement conveys a lot more than the right of ingress-egress. Your friend needs to get some more specific local legal advice based at least on what you have revealed here.

If the grantee does not want to go to he expense of a gate, that is not necessary. He can legally tear out part of the fence, make sure that no cattle get out, and rebuild the fence each time when he is done using the easement. He has no right to permanently vandalize the fence. He has a right to build a road, and appurtenant to that install a gate in cooperation with the landowner.

Run just exactly what you have proposed here past an attorney, and advise your friend to leave the fence as it is without specific advice from an attorney to just let the cattle out and drive away.