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  1. #1
    Join Date
    May 2015
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    4

    Default Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    My question involves an easement in the state of: Idaho. Our property is landlocked. We have a recorded easement 400 foot gravel drive to reach our property. We have spent a considerable amount of money maintaining the road. Problem: property granting us easement now have renters residing. Renters have damaged the road creating multiple potholes. Grant of Easement states that we are to maintain the road. What is our recourse as to who must maintain the road? 2nd question: a neighbor bordering the easement road has put in a gate to the road and is now also using the easement (has no right of easement).
    Do we have the right to deny the neighbor (who does not have easement) the use of the road? Owner of the property with easement states that he does not care who uses the road. Owner of property with easement uses approx. a third of the road to reach his garage. Thanks.

  2. #2
    Join Date
    Nov 2013
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    Default Re: Easements

    The granting language states that you will maintain the road. The only other that could maintain the road is the owner of the property (servient tenement) or anyone else if they agree to help. But you are responsible.

    The neighbor with the gate has no right to use the easement if it was not granted to them. Their use would be by permission only from you or the servient tenement if the easement is non-exclusive. An exclusive easement can only be used by you. Without permission, you could remove the gate if you want and notify them that continued use would be view as a trespass. But since the servient tenement seems to have granted permission, they can probably continue to use it.

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    Admin, I believe the title should read "tenants of servient estate....."

  3. #3
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    Nov 2013
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    672

    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    "Grant of Easement states that we are to maintain the road. What is our recourse as to who must maintain the road? 2nd question: a neighbor bordering the easement road has put in a gate to the road and is now also using the easement (has no right of easement)."

    These questions may not be relevant, but I find myself wondering. How is the Grant of Easement worded, especially where it addresses maintenance? Where is the rental property in relation to your home/access? Can you suggest to the servient tenant that if a new user is added to the easement they be required to contribute to maintenance? Who created the easement, and when?

  4. #4
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    May 2015
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    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    Thank you for your response. Question regarding exclusivity: The recorded Grant of Easement (dated August of 1972) states "For value received (names of tenants of servient estate) do hereby give and grant unto (names of landlocked property owners), their successors and assigns, the right, privilege and authority to construct, improve, repair and maintain utilities and right of ingress and egress across, over and upon the following land (followed by legal description)."

    Does this constitute exclusivity?

    Thanks.

  5. #5
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    Nov 2013
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    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    No it doesn't with respect to the servient tenant using the land.

  6. #6
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    May 2015
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    4

    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    The rental property is directly in front of our property (between our property and the city street) and the easement runs the length (400 feet) along their property line (also the property line of the neighbor using the drive who does not have easement). As the Grant of Easement is dated August of 1972, we assume that it was granted when the servient estate was created (i.e. perhaps property sold by original owner of what is now landlocked property).

    We realize that we are responsible for the maintenance of drive, but balk at the prospect when others are abusing the road. Also, the servient estate uses 1/4 of the drive to reach their garage so why are we required to maintain that portion.

    Thank you for help you can give us.

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    OK. Thanks. Appears that we either convince the tenants of servient estate to refuse access or forever regret that we purchased this landlocked piece of property (24 years ago). Appreciate your advice and expertise.

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    I'm sorry. Need clarification. The easement is nonexclusive as to the servient tenant using the road? Or nonexclusive to anyone the servient tenant gives permission to use the road?

  7. #7
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    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    Now that you have posted more of the granting language, it doesn't say you are required to maintain it as you first posted.

    Grant of Easement states that we are to maintain the road.
    It says that you have the right, privilege and authority to construct, improve, repair....

    You can always try to come to some agreement with the servient tenant to help pay for maintenance.

    I'm sorry. Need clarification. The easement is nonexclusive as to the servient tenant using the road? Or nonexclusive to anyone the servient tenant gives permission to use the road?
    Exclusive and nonexclusive easements can have two different meanings depending on the state's case law, the intent of the language, and the history.

    As a general rule, easement languages that don't specifically address the issue are nonexclusive with respect to the use by both the servient and dominant tenants. The dominant gets to use the land for the stated purpose and the servient can use the property any way it chooses as long as it does not impede the dominant's use. That would mean that the servient tenant can give permission for others to use without granting an easement to them. The use is permissive and can be revoked.

    A nonexclusive easement can also mean that others also have the right to use an easement such as a public easement.

    In some states an exclusive easement can mean that only the named dominant tenant can use the land to the exclusion of the servient.

    And, to confuse you even more, it can mean that the easement is exclusive to the named dominant tenant without excluding the use by the servient.

    I think in your case it is safe to say that the easement is nonexclusive with respect to the servient tenant and exclusive with respect to your property.

  8. #8
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    Dec 2008
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    629

    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    Quote Quoting clp
    View Post
    We realize that we are responsible for the maintenance of drive, but balk at the prospect when others are abusing the road. Also, the servient estate uses 1/4 of the drive to reach their garage so why are we required to maintain that portion.
    Nothing you have posted here says you have the responsibility to maintain the drive, all you've shown us is that you have the right to maintain the drive. This language is normally placed in granting documents so you don't run into a situation where you try to repair the road say by adding gravel and the landowner says you can't dump gravel on his property.

    In "most" cases of a shared driveway(which is what yours is now), the parties are expected to share equally in the maintenance of the drive. So if the renters are using 1/4 of the drive then they'd be expected to pay 1/8 the cost of repairing the full drive.

    you've told us nothing about how the renters are "abusing" the driveway. If potholes are now appearing on the section that they use just from the increased use then that's not abuse, just more usage causes more damage. If they are doing burnouts or digging holes in the driveway that's a different story but if they are just using it and it gets holes that's what is expected from Gravel drives that get used.

    Not legal advice, but I would suggest taking pictures of the driveway, then getting an estimate to repair it. Contact the owner of the land and ask for their share of the repair costs. No matter what their response, go ahead and make the repairs and if they won't pay then take them to court for their share.

  9. #9
    Join Date
    May 2015
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    4

    Default Re: Tenants of the Dominant Estate Have Damaged Our Right-of-Way

    Thank you for the clarification. Appreciate your time and effort. Looks like we are SOL unless servient tenant agrees to revoke permission to use drive.

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    Kids and dirt bikes caused a great deal of damage and now the renter is driving a fully loaded log truck up drive. Dirt bikes have stopped but damage is done. Will take your advice, get estimate and ask for share of cost from owner. Thanks again.

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