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  1. #1

    Default New Property Owner Requests Use of Easement

    My question involves an easement in the state of: New York

    Hello All,

    I had a gentleman stop by my house yesterday, stating that he had bought a parcel behind my house 2 parcels back. To gain access to this land, he had a deeded easement across both my property, and the property directly behind me. The easement calls for 20 feet to follow my northern boundary. Our deed does not have any wording of this easement at all, and we purchased the property 6 years ago. The easement was granted in 1987 to the previous property owner. The new owner states that he will be having a logging company coming in the next couple weeks to begin cutting a new road back in to his property, followed by gravel to finish the road. I understand that he has a right to access his property across mine, and that I don't dispute, however, he is stating his ROW is 20 feet from the edge of the stone wall, however his deed and tax map state that the ROW is 20 feet from the property line, which runs in the center of the wall, several(5-7) feet from the edge. Am I correct in believing that his access road should not necessarily be 20' wide, but only 20 feet from the boundary? Also, since it was never disclosed to us at the time of sale, whose responsibility should it have been to notify us that the ROW existed in the first place? I must say, I'm feeling very blindsided, and for sure I would have offered less for the property had I known that there was an easement across it. The new owner seems like a very nice fellow, but I want to make sure this is done the right way, and that they're not abusing the privilege of the ROW. Thanks for your time on this matter...

  2. #2
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    Default Re: New Property Owner Requests Use of Easement

    Quote Quoting Adirondackmtnman
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    Our deed does not have any wording of this easement at all, and we purchased the property 6 years ago. The easement was granted in 1987 to the previous property owner.
    That grant appears in your chain of title, correct?

    Was the grant made by the person who sold the property to you? Perhaps they were in the same position as you.
    Quote Quoting Adirondackmtnman
    ...he is stating his ROW is 20 feet from the edge of the stone wall, however his deed and tax map state that the ROW is 20 feet from the property line, which runs in the center of the wall, several(5-7) feet from the edge. Am I correct in believing that his access road should not necessarily be 20' wide, but only 20 feet from the boundary?
    Who installed the wall, and when? If, for example, the wall was standing in 1987, you have a plausible argument that the easement anticipated that the wall would be removed in association with the exercise of right to use the full width of the easement.
    Quote Quoting Adirondackmtnman
    Also, since it was never disclosed to us at the time of sale, whose responsibility should it have been to notify us that the ROW existed in the first place?
    Is this residential property? Did you receive this form or equivalent ("Does anybody other than yourself have a lease, easement or any other right to use or occupy any part of your property other than those stated in documents available in the public record, such as rights to use a road or path or cut")?

    Nobody reviewed a survey in association with the sale? Not even a mortgage survey? Nothing showed up when the title history was searched - and if not, why not?

  3. #3

    Default Re: New Property Owner Requests Use of Easement

    Quote Quoting Mr. Knowitall
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    That grant appears in your chain of title, correct?


    Was the grant made by the person who sold the property to you? Perhaps they were in the same position as you.


    Who installed the wall, and when? If, for example, the wall was standing in 1987, you have a plausible argument that the easement anticipated that the wall would be removed in association with the exercise of right to use the full width of the easement.


    Is this residential property? Did you receive this form or equivalent ("Does anybody other than yourself have a lease, easement or any other right to use or occupy any part of your property other than those stated in documents available in the public record, such as rights to use a road or path or cut")?


    Nobody reviewed a survey in association with the sale? Not even a mortgage survey? Nothing showed up when the title history was searched - and if not, why not?
    1.)No, the grant does not appear in my deed anywhere, only in the deed to the property the easement accesses.
    2.)No, they were the second owner after the grantor.
    3.)The 'wall' in question is a simple windrow of stones, common in farming areas, as fields are turned, the stones are removed, and piled along the property lines. This wall is likely well back into the 1800s as far as a date of creation
    4.)This is residential, and I'll have to look into the closing paperwork for this, what would be the recourse if the disclosure is not there?

    5.)The only description of my property on my deed is a boundary description, with no mention at all of an easement. the title has been searched twice, once when we purchased the land in 2007, and again several months ago when we refinanced. Nothing has shown up either time. I'm wondering the same 'Why Not'

    Thanks for your help so far!

  4. #4
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    Default Re: New Property Owner Requests Use of Easement

    Am I correct in believing that his access road should not necessarily be 20' wide, but only 20 feet from the boundary?
    If that is the call in the description of the easement, you are correct. Now the question becomes: where is your property line?

    In the case of a stone fence, the line may, as you say, lie somewhere in the fence and not in the edge. The stone fence itself may be called out in the description of your property. If so, it may have an additional importance and status as a surveying monument (it's not going to be removed or damaged by an easement holder). The only way of determining where the actual property line is located is by having the property surveyed by a licensed surveyor and the line clearly marked for all to see. You should be looking to the easement holder to cover the cost. He just wants to measure over from the edge of the stone closest to the easement side of the fence himself and start clearing. You need to head that off immediately.


    The new owner states that he will be having a logging company coming he next couple weeks to begin cutting a new road back in to his property, followed by gravel to finish the road.
    You need to have him get the survey done before he starts any work on the easement, especially if done by some third party. Although he is free to clear trees and brush, remember that the trees remain your personal property and any value the trees might have as lumber or even firewood need to be paid for or dealt with as damages.

    If I were in your situation I would definitely be spending a few hundred dollars (or maybe a bit more) with my attorney for some additional advice and getting a letter written about the requirement for a survey of the easement being claimed, the issue of your personal property, and the issue of liability and damages by third parties (especially loggers, who have caused me a lot of trouble) who should have proof of insurance, etc. before they enter your property. Any commitments or promises made by a logging company are worthless unless given in writing and approved by your attorney in advance of entry. It would be ideal to get a performance bond from any logger.

    Your attorney should also look into the easement situation itself. If it has been improperly executed or is otherwise subject to challenge, you should be made aware of that.

    If the easement ends up trespassing on your property, if you suffer third party damages, if your trees are stolen, it is you who will have to go to court and sue to make things right, at far greater cost than seeing the attorney now and getting the letter out.

    Good Luck!

  5. #5

    Default Re: New Property Owner Requests Use of Easement

    Quote Quoting LandSurveyor
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    If that is the call in the description of the easement, you are correct. Now the question becomes: where is your property line?

    In the case of a stone fence, the line may, as you say, lie somewhere in the fence and not in the edge. The stone fence itself may be called out in the description of your property. If so, it may have an additional importance and status as a surveying monument (it's not going to be removed or damaged by an easement holder). The only way of determining where the actual property line is located is by having the property surveyed by a licensed surveyor and the line clearly marked for all to see. You should be looking to the easement holder to cover the cost. He just wants to measure over from the edge of the stone closest to the easement side of the fence himself and start clearing. You need to head that off immediately.




    You need to have him get the survey done before he starts any work on the easement, especially if done by some third party. Although he is free to clear trees and brush, remember that the trees remain your personal property and any value the trees might have as lumber or even firewood need to be paid for or dealt with as damages.

    If I were in your situation I would definitely be spending a few hundred dollars (or maybe a bit more) with my attorney for some additional advice and getting a letter written about the requirement for a survey of the easement being claimed, the issue of your personal property, and the issue of liability and damages by third parties (especially loggers, who have caused me a lot of trouble) who should have proof of insurance, etc. before they enter your property. Any commitments or promises made by a logging company are worthless unless given in writing and approved by your attorney in advance of entry. It would be ideal to get a performance bond from any logger.

    Your attorney should also look into the easement situation itself. If it has been improperly executed or is otherwise subject to challenge, you should be made aware of that.

    If the easement ends up trespassing on your property, if you suffer third party damages, if your trees are stolen, it is you who will have to go to court and sue to make things right, at far greater cost than seeing the attorney now and getting the letter out.

    Good Luck!
    He does indeed have a survey, performed for the previous land owner, so the boundaries are well documented. My boundary an the easement side of my property is marked by two pins(east and west) set in the center of the stone wall, and follows a straight line from those pins. I have no wood, besides a little brush here and there along the ROW, nothing bigger than 3/4'' or thereabouts, so as far as money from harvest of timber, this won't be an issue. I know the logging company involved, and while they are fully insured, I(or a neighbor) will be present while they are performing their task, as they have been known to reach across boundaries to snag a tree or two that they like the looks of which isn't theirs for the taking. once they are past my 300', the landowner behind me may have issues, because his lot is heavily forested, and he lives in another state. The easement holder has notified him of what's going on, so I won't get involved in their situation, as it's not my place, but I may let him know that those trees are in fact his and not the property of the person granted the ROW.

  6. #6
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    Default Re: New Property Owner Requests Use of Easement

    Quote Quoting Adirondackmtnman
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    1.)No, the grant does not appear in my deed anywhere, only in the deed to the property the easement accesses.
    An easement doesn't necessarily appear in your deed - it can be a separate grant. Some states follow the practice of recording an easement appurtenant (an easement that benefits another parcel of land) against the dominant estate (the property that benefits from the easement), as opposed to the servient estate (the property subject to the easement), but in those states a title search should nonetheless identify the grant. I see some authority from New York for the position that if you took the property without notice of the easement, whether from your chain of title or any other source, you might be able to argue that the easement was extinguished, see Cronk v Tait, 305 A.D.2d. 947 (2003), although in that case a survey map reflecting the easement, given to the owner of the servient estate before their purchase, was deemed adequate - so you need to review the documents from your purchase. These are issues you would want to discuss with a property lawyer in your state, who likely has some state-specific books on his library or accessible through a subscription to online legal materials that summarize the state's law on these issues.
    Quote Quoting Adirondackmtnman
    2.)No, they were the second owner after the grantor.
    Then, like you, they may not have known about the easement.
    Quote Quoting Adirondackmtnman
    3.)The 'wall' in question is a simple windrow of stones, common in farming areas, as fields are turned, the stones are removed, and piled along the property lines. This wall is likely well back into the 1800s as far as a date of creation
    Then it's reasonable to infer that it existed when the easement was granted (assuming there is a grant) and you can emphasize that to the neighbor - that they are to stay within the confines of the grant, and not to go so much as an inch further into your property. LandSurveyor provided good comments on this issue and possible complications.
    Quote Quoting Adirondackmtnman
    4.)This is residential, and I'll have to look into the closing paperwork for this, what would be the recourse if the disclosure is not there?
    As you can see from the form, the disclosure is for easements not in the chain of title. If in fact there is no grant within the chain of title and they were aware of a grant, they should have informed you. It's not a public document, so it may be impossible to obtain, but it would be interesting to see the disclosure form from their purchase of the property. If the easement is not recorded in your chain of title, the next step would be proving that their misrepresentation was intentional - you should discuss with your lawyer whether that is likely to be worth the effort.

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