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  1. #1
    Join Date
    Jun 2010
    Posts
    4

    Default Easement Holder's Construction of a Fence on the Servient Estate

    California

    My neighbor has erected a fence on my property, a few feet from his easement which is on my property, without my permission, and wishes to enclose the easement with a gate. The language of the easement gives him the right to a driveway and utilities. He claims he has a right to protect his easement from deer which pose a hazard (total bs). Deer are no more of a hazard on this driveway then anywhere else in the community. I think he really is trying to claim more property.

    My main issues are that the fence is an eyesore. Part of the fence and his planned gate are right in front of my bedroom window. It restricts my free use of my property which I understand he has an easement on.

    He has had an attorney write me a letter, basically stating he has a right to this fence and gate because of the deer safety issue (this is really reaching, especially since this driveway has been ungated/unfenced for 15+ years). The letter stated that I would have access with a key or something.

    My options are:
    -Write him a demand letter that he remove the fence and hold him accountable for any costs if I have to do it.

    -Just take it down my self (why not it's on my property), and let the onus be on him to put anything up on my property.

    -Hire an attorney to fight this nonsense... But why should I have to spend money when he is putting fences on my property and seems clearly in the wrong?

    Note: I have a survey, the fact that the fence is on my property is not in dispute.

    Thanks for the reply!

  2. #2

    Default Re: Easement/Fence Dispute

    he's overburdening the easement. Ingress/Egress and Utilities generally lacks the intent of a fence as well. Unfortunately you'll need that attorney since he has one, otherwise you'll get nowhere.

    Deer safety, never heard that one. Is he some kind of idiot?

  3. #3

    Default Re: Easement/Fence Dispute

    Well unless the easement states otherwise, building, planting, or otherwise encumbering the easement with a fence, gate, landscaping, etc is an encroachment upon your property. More than likely, the easement only grants your neighbor access to your property to ingress and egress and to run utilities, but nothing else would be allowed. It's important, however, to make sure the recorded easement doesn't say or allow for anything else. I would probably recommend proceeding with a letter to his lawyer stating that his client has a specified number of days (check your state law on minimum notification) to remove the gate. Also reiterate that the placement of ANY structure within this easement is an encroachment and your neighbor is only entitled to ACCESS of this land for the purposes expressed in the easement, not a possessory right.

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