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  1. #1
    Join Date
    Jun 2010
    Posts
    2

    Default Easement Paving Job

    1. I live in NY State and according to my deed I have "an easement of right of way in common with others" to and from my property to public street.
    2. Have used and maintained this roadway for the past 29 years -- snow removal, fallen trees and limbs, filling in pot holes etc.
    3. Recently had a professional contractor pave a 200 ft section of the roadway that was badly deteriorated and dangerous.
    4. Recieved a letter from absentee owner of the roadway demanding that I remove the new pavement.
    5. This letter also stated that " you have a responsibility to maintain the road but no right to change its character."
    6. The section of roadway that I had repaved was paved when I moved here in 1981.
    7. The deed is silent on the issue of maintainence

    Questions:
    1. Does the owner have a legal basis for his demand?
    2. Do I have any rights in this matter?

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,576

    Default Re: Easement Paving Job

    I'm wondering why the owner of the servient tenement would have any legal objection to having the pavement restored to it's previous condition.

    That is what is missing here.

  3. #3
    Join Date
    Jun 2010
    Posts
    2

    Default Re: Easement Paving Job

    in my legally uniformed opinion owner has no " legal" objections. He is simply is angry that I and other neigbors have opposed a 4/5 story 59 unit condo that he wants to build next door to me. It is way too large and would block my view of a nearby river and sunlight. The private one-lane roadway is ten (10') feet andwould have be be expanded to a two lane road 25 footer to accomodate the traffic the condo would generate and meet the town's requirements. This would require some serious excavation and blasting and the town planning and building departments have reservations about this and other environmental issues. My bottom line question is, does he have legal grounds to enforce his demand that I remove the blacktop?

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,576

    Default Re: Easement Paving Job

    Sounds like an upcoming furball.

    At this point we can assume that the neighbor definitely has an attorney involved in this matter.

    5
    . This letter also stated that " you have a responsibility to maintain the road but no right to change its character."
    That may be correct. If it goes to court, the court will look to the plain language of the easement and then to case law in NY. The question of fact before the court might be whether you changed the character of the road or returned it to an earlier condition.

    My bottom line question is, does he have legal grounds to enforce his demand that I remove the blacktop?
    If you do not agree to rip it out, he will probably have to go to court to make that happen. He could also just come in and rip it out himself, but as he is already acting under the advice of an attorney, I would not expect that. It would land him in court anyway when you took him there.

    I would suggest that you and your easement owners in common pony up the cost of a couple of hours of billable time with a local real estate attorney, in order to get your specific questions answered, and perhaps an idea or two about strategy in the upcoming furball.

    Good Luck!

  5. #5
    Join Date
    Apr 2008
    Posts
    176

    Default Re: Easement Paving Job

    I would think that since there was a prior section or sections which were paved, repaving is not changing the character.

  6. #6

    Default Re: Easement Paving Job

    Quote Quoting Householder
    View Post
    1. I live in NY State and according to my deed I have "an easement of right of way in common with others" to and from my property to public street.
    2. Have used and maintained this roadway for the past 29 years -- snow removal, fallen trees and limbs, filling in pot holes etc.
    3. Recently had a professional contractor pave a 200 ft section of the roadway that was badly deteriorated and dangerous.
    4. Recieved a letter from absentee owner of the roadway demanding that I remove the new pavement.
    5. This letter also stated that " you have a responsibility to maintain the road but no right to change its character."
    6. The section of roadway that I had repaved was paved when I moved here in 1981.
    7. The deed is silent on the issue of maintainence

    Questions:
    1. Does the owner have a legal basis for his demand?
    2. Do I have any rights in this matter?
    My opinion is that he is messing with you for opposing his project. I bet if you simply do not respond, he'll waste his time with a few more letters, but it will never see the light of court. Unless the paving is bright pink with yellow polka dots, repaving an already paved driveway is reasonable maintenance and care and you mentioned it was dangerous.... I'd argue it was your duty as an interest holder in the easement to keep it free of danger to real or personal property. I'm sure your insurance company would agree!

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