Results 1 to 8 of 8
  1. #1
    Join Date
    Apr 2011
    Posts
    4

    Default Existing Aerial Utilities Incursion - but No Recorded Easement

    My question involves an easement in the state of: MA

    I know you're not my lawyer. I do know I need a lawyer. Performing my due diligence with you fine experienced folks beforehand.

    We bought a house that is the servient estate with a recorded easement providing the dominant estate a relatively short strip of land for all purposes for which a passageway may be used. The easement was created in the early part of the twentieth century, and is a total of two sentences, recorded in the relevant deeds.

    There are a number of issues at play, but my question to you is about the aerial electrical and cable wires strung above the passageway in question. Electrical service is provided by the town, and there is no recorded easement for same. The town electrical department does realize this, but it was a very recent realization. Electrical wires have been there for over 20 years. Cable wires were installed last year by a local cable co.

    We have title insurance. Extra recorded easements will, I assume, impact our property value, as lot sizes are small.

    What would you do, to a)protect your property and b)to ensure your compliance with mortgage lender's requirements?

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    so, what are the two sentences of the easement?

  3. #3
    Join Date
    Apr 2011
    Posts
    4

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    "...the said parcel of land is subject and has the benefit of a common driveway or passageway...thereof for all purposes for which a driveway or passageway may be used."

    "[Description of dominant parcel]...in the rear of above described parcel as to retain the right to use said passageway in common with others entitled thereto."

  4. #4
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    That's a pretty vague statement but I would read it that as a passageway, the possible purposes would be utility lines. As such, the power lines and cable lines are legit.

    Beyond that, the power lines would be allowed per a prescriptive easement anyway.

  5. #5
    Join Date
    Apr 2011
    Posts
    4

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    Yes, I understand the possibility of a prescriptive easement covering the aerial electric lines -- there are other issues at play, as mentioned. However, in a case where a prescriptive easement exists, shouldn't it then be made official in some way?

    I shall hie me to case law and read up on passageway easements.

    And thank you!

  6. #6
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    a prescriptive easement doesn't have to be made official. If the burdened property owner wishes to attempt to cease the burdening, they can attempt to sue the other party to cease the action. It is then a defense for the other party to claim a prescriptive easement. While it can be made official, it wouldn't have to be.

    There are benefits to making it official though. You can then place rules and limitations on the use of the easement if you desire. That way, it would help prevent any need for legal action in the future.

    the biggest problem I see is that easement as written. Depending on whose argument would win, it could include all types of uses. In others arguments, even the electrical lines would not be allowed.

    One thing I want to clarify. In your first post, you say the town does not have an easement for the power lines. If the only entity fed via those lines is/are dominant tenant(s) of the easement, the city would not require an easement. They would be allowed under the

    thereof for all purposes for which a driveway or passageway may be used.
    " afforded the dominant tenant. The lines are not for the power companies benefit but the dominant tenant. If the lines extended to some other area not a dominant tenant of the easement, then the power company would require an easement as they are using the easement given the dominant tenant(s) beyond the terms allowed.

  7. #7
    Join Date
    Apr 2011
    Posts
    4

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    Good stuff. Thanks for playing my devil's advocate. Now, let me pose a potential problem in letting it be and assuming a prescriptive easement for town-provided electric and private company-provided other utility (and for right now, I'm putting aside your last point) what if one or the other decides to run said utility underground? It would then be far more of a burden to the servient estate for both installation and access to maintain.

  8. #8
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Existing Aerial Utilities Incursion - but No Recorded Easement

    Initially it would be more of an obstacle but realistically, once they are in place, the should require very little maintenance...and you wouldn't be able to see them. and in the end, if it was underground, they wouldn't have to bring in bucket trucks to work on the line.



    as a right to do the underground install; I see nothing that would prevent them from doing so as long as they return the easement to a pre-install condition and to not somehow add equipment that would obstruct the easement.

    1. Sponsored Links
       

Similar Threads

  1. Drainage Across Property by Developer Without Recorded Easement
    By ARflatlander in forum Real Estate Ownership and Title
    Replies: 9
    Last Post: 06-23-2010, 10:52 AM
  2. Utility Easement Never Recorded, is It Still Active
    By Mississippimade in forum Real Estate Ownership and Title
    Replies: 4
    Last Post: 08-31-2009, 10:04 PM
  3. Can I Block Road if There is No Recorded Easement
    By lyndadel in forum Real Estate Ownership and Title
    Replies: 3
    Last Post: 02-01-2009, 07:42 PM
  4. Non Exclusive Recorded Easement Rights
    By brutus911 in forum Real Estate Ownership and Title
    Replies: 6
    Last Post: 11-17-2008, 09:40 PM
  5. Easement On Survey Map, But Not Formally Recorded
    By madducks in forum Real Estate Ownership and Title
    Replies: 2
    Last Post: 08-11-2007, 03:00 PM
 
 
Sponsored Links

Legal Help, Information and Resources