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  1. #1
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    Default Terminating an Easement Due to Abandonment

    My question involves real estate located in the State of: North Carolina

    Hi guys, I am the serviant estate of an ingress & egress easement that is a major burden to me and I am looking to understand how I can terminate it. It is a permanent easement but there are some very unusual factors that make my situation more complex and unreasonable, so I would really appreciate your guidance. Quoting from the easement: "non-exclusive, perpetual easement for purposes of ingress and easement" ... "...easement is appurtenant to and runs with the lands..."

    Usage of the easement: the dominant estate is a landlocked house and the elderly lady who lives in it is heavily medicated and has caregivers. She does not have a car and she never walks on the easement - instead she uses my neighbor's property to get to the road because it is a direct path to the road and my neighbor allows it.

    About my property on the easement: this easement was written almost exactly 20 years ago, and at the time of writing, there was already a fence passing through it. The elderly lady's new caregivers, upon finding out about the easement, have taken it upon themselves to tamper with my property. They have cut down my bushes on the easement, threatened to take down the part of my fence which crosses the easement, and sprayed roundup all over my lawn on the easement.

    About my closing attorney: to put it bluntly, my closing attorney sucked. Most importantly, she did not disclose a key document that explained the easement, which I only learned about recently after seeing another lawyer who did a title search and showed me the document. To clarify, while the easement was in the title I was given at closing, my attorney could not explain some of the language on it because she was missing that key document. Also, when I asked my closing attorney if I may have to take down my fence due to the easement, she said it would not be an issue.

    Question 1: why is there not clearer direction on such an antiquated situation? This easement was made as a gentlemen's agreement in a completely different time period with different laws. Clearly the intent of the easement was never to take down my fence and bushes/privacy or the original owner 20 years ago would have done so. Just because a legal document (this easement) is written to last forever, what happens when it was never followed and now at the whim of malicious caregivers taking advantage of a gentlemen's agreement I have to pay the price?

    Question 2: how is this not a public matter? The government would not have allowed the elderly lady's landlocked house to be built today, but since the government messed up years ago and allowed the house to be built, why are they not responsible for resolving the present situation? If a car manufacturer recalls a car because of a defect, they always compensate their customers in some way. Instead, in this situation, the government messed up, changed the law to prevent future screw ups, but then completely ignored all existing situations because it was inconvenient to them. How can this possibly be acceptable? As a result, in my particular case, a gentlemen's agreement was signed between two private parties, and now the agreement is being interpreted differently and I'm being threatened/harassed to take down my fence. This entire situation exists only because of the government's incompetency. How do I hold them responsible?

    Question 3: is there a strong case for terminating the easement due to abandonment? I.E. the dominant estate never uses it today and has not been using it for almost 20 years.

    Question 4: since my fence has always been on the easement since the time of its writing, do I have a strong case to keep it there? Can I repair it if it's falling apart in some places? Could I still be required to take it down? What about the bushes and trees that have also been on the my easement since the time of writing?

    Question 5: what are my legal rights/recourse in response to how the caregivers have been damaging my property? What makes this extra ridiculous is the caregivers are definitely NOT acting on behalf of the elderly lady. She doesn't seem to care about the easement and has not given me any trouble. She is a nice lady but is not fully present (heavily medicated & diagnosed with schizophrenia) and once told me "I just do whatever I'm told." She is clearly not in her right mind, and the caregivers are acting alone as there was no issue until they started caring for her.

    Question 6: what are my legal rights/recourse due to my closing attorney's negligence? The lawyer I met recently who showed me the missing document explaining the easement that was absent at closing suggested I take this up with my closing attorney. I want to be prepared and understand my rights before meeting with my closing attorney. Is it reasonable to request that my closing attorney's firm represent my interests with the easement until it is resolved to my satisfaction free of charge, since they were negligent at closing? More broadly, what are my rights and what is my closing attorney's firm obligated to do in this situation?

    Thank you in advance for your guidance!

  2. #2
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    Default Re: Terminating an Easement Due to Abandonment

    They have cut down my bushes on the easement, threatened to take down the part of my fence which crosses the easement, and sprayed roundup all over my lawn on the easement.
    well, your fence does block the use and if your bushes prevented full use of the easement the neighbors had a right to clear the easement.

    20 years ago is not antiquated law or anything else you claim. It’s obviously more than a gentleman’s agreement since it has been documented in writing.

    Since it’s an ingress and egress easement, it is more than obvious the fence and bushes would have to go.

    You are trying to make this more thsn what it is. There is an easement. It was even known at the time of your purchase (although it wouldn’t really matter if it is in the public record). The dominant tenant has a right to use the easement and you have no right to block it. You have no recourse against the people clearing the easement on behalf of the dominant tenant.

    Is it reasonable to request that my closing attorney's firm represent my interests with the easement until it is resolved to my satisfaction free of charge, since they were negligent at closing?
    . No it’s not. You’ve not shown anything suggesting negligence.



  3. #3
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    Default Re: Terminating an Easement Due to Abandonment

    I'm not following you. My closing attorney did not disclose all documentation about the easement in the title search and as a result I was unable to understand the easement and my closing attorney did not explain it. On top of that, my closing attorney flat out lied and said the easement would not be an issue after I specifically asked her if I could be required to take down my fence. That is not negligence? What did I pay my closing attorney for if not to represent me?

    For example, let's say that the next time you go to a dentist and ask about a tooth that's hurting, your dentist tells you it's not a big deal, don't worry, you don't have a cavity. One year later, it turns out you did have a cavity and now you have a very expensive surgery on your hands. You paid your dentist to provide you with a service and because of his or her negligence, you now need to spend more money and go through more pain! Would you be okay with this situation and would you not hold your dentist responsible? How is my situation any different? My lawyer completely misrepresented my easement to me even though I paid her to be my closing attorney and uphold my best interests.

    How can I not have recourse against caregivers who are not acting on behalf of the dominant estate? The dominant estate has not notified me, verbally or in writing, about the easement. It is clear the caregivers are acting on their own accord.

    About your point regarding the easement being in writing and not antiquated, at the time the easement was written my fence and bushes existed. If the original owner of my property intended to take down the fence and bushes, that would have been done 20 years ago. If there was any intent to do so by the dominant estate, that could have been done 20 years ago.

    To stress this point, taking down the fence and bushes would reduce the value of my property by tens of thousands. It is a huge easement, over 20 feet wide, and it goes down the full length of the side of my property. I would not have been approved for my home loan by the appraiser if it was known that I would have to take my fence and bushes down.

    Just because something is in writing doesn't mean the law makes sense today or would even be allowed to exist today. None of this would have happened if the government hadn't messed up and allowed a landlocked house to be built. Why am I now responsible for the government's mistake? Why am I the first person that needs to uphold an easement that even the dang signers of the easement 20 years ago didn't uphold because clearly they had a different understanding of how it worked? That is about as antiquated as it gets.

  4. #4
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    Default Re: Terminating an Easement Due to Abandonment

    I don't have much time to respond this morning but in addition to what JK posted, the neighbor's property is no longer landlocked because the property has an ingress and egress easement across your property that is appurtenant.

    An easement that is appurtenant is not extinguished by non-use. It can be extinguished by a court if it can be shown that the dominant estate takes some action to abandoned the easement by say putting a stone wall across it or putting a building on it that blocks its use. So get use to the fact that you are the servient estate and the dominant estate has every right to full use of the entire easement.

    BTW, easements granted several hundred years ago are still enforceable today.

  5. #5
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    Default Re: Terminating an Easement Due to Abandonment

    How can I not have recourse against caregivers who are not acting on behalf of the dominant estate? The dominant estate has not notified me, verbally or in writing, about the easement. It is clear the caregivers are acting on their own accord.
    it appears they are acting on behalf of thebdominant tenant and nobody has to give you any notice of anything. The dominant tenant can utilize their rights at will.

    If you believe they are acting unlawfully then call the police to report the activity.

    As far as your closing attorney; you can fight that out with them but ultimately, to me, it doesn’t appear you have any valid arguemrt

    I would not have been approved for my home loan by the appraiser if it was known that I would have to take my fence and bushes down.
    your appraiser did, or surely should have, understand the easement situation. Whether they explained anything to you or not or made any specific references to it, a licensed appraiser surely knows what an easement allows.

  6. #6
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    Default Re: Terminating an Easement Due to Abandonment

    Hey guys, I appreciate the replies and understand what the easement says, but what's not being appropriately considered is the context of my specific situation. I encourage you to put yourself in my situation and ask if you would accept the same treatment, and more importantly, ask yourself if the law itself is reasonable.

    I'll start by revisiting my closing attorney - how can I not have a valid argument that my closing attorney misrepresented me by failing to disclose the facts of the easement to me? She legally represented me at closing and I paid her to do so. Is the law in the United States so nonsensical that there is no recourse for real estate closing attorneys who don't do their job? I want to be clear that is what you're telling me, and if that is correct, then the law needs to change because it makes closing attorneys immune to wrongdoing.

    About the appraisal, this is just common sense - I would not have bought the house if my fence was removed or cut back by over 20 feet, if I didn't have all my bushes/privacy, and if I could constantly see my neighbor's house in my yard. The price of the house would immediately decrease by tens of thousands of dollars. If my own closing attorney said the easement would not be an issue, and all previous dominant/serviant estates did not enforce the easement, why would the appraiser know that the fence could be pulled down and my privacy removed at any moment? If they did know that, why would they not be legally REQUIRED to disclose this to me, the buyer, so that I understand the risk of my loan? That is a serious risk of DEFAULT if I need to sell the house in a few years, for example. This is a matter of accountability. When I go to work, I am accountable for my work. If I screw up or make a mistake or fail to inform the client of a potential risk or impact of their decision, I am accountable. Again, if the law does not account for this situation, than the law does not make sense. It is literally promoting negligence by saying that there is no legal recourse or accountability for not doing your job as an appraiser or closing attorney.

    About the easement, while I understand it lasts forever, there are plenty of laws that were drafted to last forever and were subsequently overturned because they did not make sense. I want to make clear that the neighbor's property is no longer landlocked because of a PRIVATE agreement. The government messed up by allowing the house to be built landlocked and never did a thing to fix the problem. Is the government immune to wrongdoing? Is it too big to be held accountable and each citizen impacted needs to shoulder the burden forever? That is not a reasonable answer. That it not something any judge, any lawyer, or any government official who was in this situation as the serviant estate would accept.

    In this case it was handled privately by a gentlemen's agreement 20 years ago that did not involve removing the fence & privacy of the serviant estate who signed the agreement and was never enforced that way for the life of the easement. Seems to me that you're saying I'm the only person accountable in this situation due to simply purchasing the house, and when I sell it, all accountability will pass to the new owner of the house, and that will happen forever until someone decides to stand up for their rights to address and correct an agreement that was made under different circumstances, different laws, and with a different understanding in mind.

    If I have no rights to over 20 feet of my property, why am I even paying taxes on it? I have less rights to it than the dominant estate, who can poison my lawn and remove anything on the easement at will. If the government was held accountable for their mistakes, they would have required that property be transferred over to the landlocked estate and fairly compensated the serviant estate for the mistake. OR today they would have requirements consistently enforced that make it abundantly clear that all ingress & egress easement must have all fences, trees, and any other permanent fixtures removed from them as that is legally required in order for the landlocked house to access the road and for the serviant estate to have an accurate valuation. The taxes on the easement should either be SPLIT between dominant & serviant estate or excluded from both as neither estate has full access to the property on the easement due to the government's oversight.

    Instead the government has continued to remain aloof, treating the issue as if it's not their problem when are the very cause of the situation. Even if what I'm saying now is a major shift in mindset/approach, my particular situation is much more complex than your typical easement. To highlight this by addressing another point you guys made, why should it be assumed that the caregivers are acting on behalf of the dominant estate - the dominant estate has been owned by the same lady for the duration of the easement. 20 years ago when it was drafted she didn't request the fence be taken down. That is evidence that she never intended for the fence to be removed, but now that she has new caregivers and she is heavily medicated and unaware of what's going on, I have zero rights and should just go by what these malicious, destructive people want to do with my property on the easement?

    Again I ask all of you: would any judge, any lawyer, any government official, or any of you accept this situation as the serviant estate?

  7. #7
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    Default Re: Terminating an Easement Due to Abandonment

    "Instead the government has continued to remain aloof, treating the issue as if it's not their problem when are the very cause of the situation."

    The easement was not granted by "the Government". Can you explain what agency you are blaming for the situation? The easement was granted by a former owner of your property, and apparently correctly recorded.

    "Even if what I'm saying now is a major shift in mindset/approach, my particular situation is much more complex than your typical easement."

    Why? I have a similar easement on a property. What is so complex about yours? From what you seem to describe, the easement Grantor was willing to allow those impediments to use to be removed when needed. Why do _you_ think the easement was granted, and formalized?

    "To highlight this by addressing another point you guys made, why should it be assumed that the caregivers are acting on behalf of the dominant estate - the dominant estate has been owned by the same lady for the duration of the easement. 20 years ago when it was drafted she didn't request the fence be taken down. That is evidence that she never intended for the fence to be removed, bu was granted when with fence and bushes in place".

    Why are you assuming the "caretakers" are NOT acting on behalf of the dominant estate, or perhaps a court appointed guardian? Just because the owner chose not to use the easement doesn't mean she is not entitled to use it. Have you asked why it is now being cleared? If it was granted to allow access to prevent the property from being landlocked, perhaps there are issues with the non-easement access the dominant property has been using all these years. Maybe that permissive use has been terminated. You should find out.

    "Which means the the t now that she has new caregivers and she is heavily medicated and unaware of what's going on, I have zero rights and should just go by what these malicious, destructive people want to do with my property on the easement?"

    Until you have the facts, you are in a poor position to judge. Perhaps the owner (or their guardian) is planning on selling, which would mean that the legal access must be usable. Perhaps her health is such that she needs hospice care, or round the clock care at a facility that can provide such care.

    You have the same rights you have always had. You can use the easement. You just cannot obstruct THEIR use, which trumps your landscaping and fence. It's possible you could keep your fence if there is a gate allowing them 24/7 access, but that may not be feasible. It's actually not a "huge" easement. Most residential access easements around here (rural SC) are 30 feet.

    "Again I ask all of you: would any judge, any lawyer, any government official, or any of you accept this situation as the serviant estate?"

    But you did accept it, when you signed at closing. The fact that you say you didn't understand it is not going to help. If you didn't understand, you should have insisted that it be explained in a way you could comprehend.

  8. #8
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    Default Re: Terminating an Easement Due to Abandonment

    Your specific situstion:

    there is an easement. You even knew about it at the time of purchase. Nothing alas matters. You are bound to the deeds and documents of record. Any failure to realize what having an easement cross your is irrelevent.

    Re: the CLOSING attorney. It was a closing attorney. The information you would want regarding the easement would be well before you reached that point.

    You have no rights to block the easement to stand up for.

    Your argument about the government screwing up. Even if they did, it would still be irrelevent because you knew of the situation prior to your purchase. You accepted the easement being in place. You don’t even have a valid argument against the easement.

  9. #9
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    Default Re: Terminating an Easement Due to Abandonment

    Quote Quoting BobStanley
    View Post
    My question involves real estate located in the State of: North Carolina

    Hi guys, I am the serviant estate of an ingress & egress easement that is a major burden to me and I am looking to understand how I can terminate it. It is a permanent easement but there are some very unusual factors that make my situation more complex and unreasonable, so I would really appreciate your guidance. Quoting from the easement: "non-exclusive, perpetual easement for purposes of ingress and easement" ... "...easement is appurtenant to and runs with the lands..."

    Usage of the easement: the dominant estate is a landlocked house and the elderly lady who lives in it is heavily medicated and has caregivers. She does not have a car and she never walks on the easement - instead she uses my neighbor's property to get to the road because it is a direct path to the road and my neighbor allows it.

    About my property on the easement: this easement was written almost exactly 20 years ago, and at the time of writing, there was already a fence passing through it. The elderly lady's new caregivers, upon finding out about the easement, have taken it upon themselves to tamper with my property. They have cut down my bushes on the easement, threatened to take down the part of my fence which crosses the easement, and sprayed roundup all over my lawn on the easement.

    About my closing attorney: to put it bluntly, my closing attorney sucked. Most importantly, she did not disclose a key document that explained the easement, which I only learned about recently after seeing another lawyer who did a title search and showed me the document. To clarify, while the easement was in the title I was given at closing, my attorney could not explain some of the language on it because she was missing that key document. Also, when I asked my closing attorney if I may have to take down my fence due to the easement, she said it would not be an issue.

    Question 1: why is there not clearer direction on such an antiquated situation? This easement was made as a gentlemen's agreement in a completely different time period with different laws. Clearly the intent of the easement was never to take down my fence and bushes/privacy or the original owner 20 years ago would have done so. Just because a legal document (this easement) is written to last forever, what happens when it was never followed and now at the whim of malicious caregivers taking advantage of a gentlemen's agreement I have to pay the price?

    Question 2: how is this not a public matter? The government would not have allowed the elderly lady's landlocked house to be built today, but since the government messed up years ago and allowed the house to be built, why are they not responsible for resolving the present situation? If a car manufacturer recalls a car because of a defect, they always compensate their customers in some way. Instead, in this situation, the government messed up, changed the law to prevent future screw ups, but then completely ignored all existing situations because it was inconvenient to them. How can this possibly be acceptable? As a result, in my particular case, a gentlemen's agreement was signed between two private parties, and now the agreement is being interpreted differently and I'm being threatened/harassed to take down my fence. This entire situation exists only because of the government's incompetency. How do I hold them responsible?

    Question 3: is there a strong case for terminating the easement due to abandonment? I.E. the dominant estate never uses it today and has not been using it for almost 20 years.

    Question 4: since my fence has always been on the easement since the time of its writing, do I have a strong case to keep it there? Can I repair it if it's falling apart in some places? Could I still be required to take it down? What about the bushes and trees that have also been on the my easement since the time of writing?

    Question 5: what are my legal rights/recourse in response to how the caregivers have been damaging my property? What makes this extra ridiculous is the caregivers are definitely NOT acting on behalf of the elderly lady. She doesn't seem to care about the easement and has not given me any trouble. She is a nice lady but is not fully present (heavily medicated & diagnosed with schizophrenia) and once told me "I just do whatever I'm told." She is clearly not in her right mind, and the caregivers are acting alone as there was no issue until they started caring for her.

    Question 6: what are my legal rights/recourse due to my closing attorney's negligence? The lawyer I met recently who showed me the missing document explaining the easement that was absent at closing suggested I take this up with my closing attorney. I want to be prepared and understand my rights before meeting with my closing attorney. Is it reasonable to request that my closing attorney's firm represent my interests with the easement until it is resolved to my satisfaction free of charge, since they were negligent at closing? More broadly, what are my rights and what is my closing attorney's firm obligated to do in this situation?

    Thank you in advance for your guidance!
    The next person owning that home may very well have a car and need the easement for ingress/egress. A court is unlikely to make a decision based on the needs of only the current owner of the property.

  10. #10
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    Default Re: Terminating an Easement Due to Abandonment

    Since the owner of the dominant tenement doesn’t have a car and now she has caregivers, who presumably must drive to attend to her, it would appear she didn’t need a driveway or very minimally so maybe the neighbor was being nice but nkwnthat there are regular visitors they have withdrawn the generous allowance. That would make it necessary to use her legally granted access aka the easement the op is having issues accepting.

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