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  1. #1
    Join Date
    Jan 2011
    Posts
    2

    Default Prescriptive Easement vs Deeded Easement

    My question involves an easement in the state of:VA

    I recently purchased a lot that has 2 deeded easements that benefit the property behind mine. One is a 15' driveway easement and the second a 12' water line easement. The easements are referenced from the side property line.

    I am building on my lot and while excavating for footers yesterday we found (and cut) the waterline servicing the rear property. The line is approximately 25' onto my lot and crosses the only place to build a house.

    I notified the adjacent absentee property owner. (The property is a vacant rental unit.) Current owner purchased the property in 2006. Information in the tax records indicate the house may have been built in the 1950's. The copper water line from the water meter to the house looks fairly new.

    Owner is claiming a prescriptive easement for the line in its current location and has asked that I pay to move the line. Is an underground (hidden) waterline outside of a deeded easement sufficient to claim a prescriptive easement?

    Thanks in advance for your advice.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,558

    Default Re: Perscriptive Easment vs Deeded Easment

    At this point, the neighbor has only the deeded easement available for their waterline. A prescriptive easement is just a claim until agreed to by you or a court.

    This isn't legal advice, of course, but just what I might do in your situation.

    I would say to the neighbor that their water line is outside of the easement and preventing you from using your property. I would give them maybe seven days to move the line onto the deeded easement while I withheld further building plans. Each day of delay beyond that will be causing you monetary damages by delaying construction, and that you will consider that you can remove all of the water line which is outside of the easement at will if you do not get a cooperative response. I'd do that verbally and also in writing.

    You will either get a near immediate agreement or be sued for a prescriptive easement. The chances of that are dependent on the facts which are not yet known, such as the length of time the house and water line have been in place. My guess is that it will cost the neighbor a lot less to move the line than to take you to court.

  3. #3

    Default Re: Prescriptive Easement vs Deeded Easement

    Quote Quoting Hatterasman
    View Post
    Is an underground (hidden) waterline outside of a deeded easement sufficient to claim a prescriptive easement?
    No. One of the requirements for prescriptive easements, and this also goes for adverse possession, is that the use of the land be "open and notorious", notorious meaning that anyone would be able to take "note" of it. A buried waterline clearly fails that requirement.

    Stephen Calder

  4. #4
    Join Date
    Jan 2011
    Posts
    2

    Default Re: Prescriptive Easement vs Deeded Easement

    I took the advice of LandSurveyor and gave written permission to enter my lot for the purpose of relocation the water line. I also had a registered land surveyor pin the easement eariler this week and wrote another letter making them aware of the pins. Thanks Stephen for the definitive information.

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