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  1. #1
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    Aug 2019
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    Default Paving a Driveway That Has an Easement

    My question involves real estate located in the State of: North Carolina
    We purchased a property that has an easement running across the back that is 45" wide. In order to put the driveway in, our HOA requires the driveway to be paved to the garage. This would involve paving about 20 feet into the easement. We have tried getting the easement moved (at our expense) but the owner of the easement is difficult to work with. This easement is shared by 6 other lots, one of them serving as a driveway for a landlocked property. My questions are:
    1. Since we own the property, do we have a right to pave on the easement without permission?
    2. Can the HOA enforce the full paving rule or could we pave our portion and leave the easement portion alone?
    3. Can we force the easement to be moved or reduced?
    4. If all six lot owners can drive over our driveway, how do we handle any damage/maintenance to the paving?
    Thank you.

  2. #2
    Join Date
    Sep 2010
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    19,207

    Default Re: Paving a Driveway That Has an Easement

    All that would depend on how the easement is written. If it's exclusive, you can't do anything without the permission of the dominant tenant. If not, then you're entitled to pave or use the easement as long as it doesn't interfere with the other users.

    Maintenance is usually the responsibility of the dominant tenants. However, you improving the easement for your own use might change that.

    Best to bring all the paperwork you have to an attorney to read the actual words.

  3. #3
    Join Date
    Nov 2013
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    6,430

    Default Re: Paving a Driveway That Has an Easement

    Quote Quoting Lawnurse59
    View Post
    My question involves real estate located in the State of: North Carolina
    We purchased a property that has an easement running across the back that is 45" wide. In order to put the driveway in, our HOA requires the driveway to be paved to the garage. This would involve paving about 20 feet into the easement. We have tried getting the easement moved (at our expense) but the owner of the easement is difficult to work with. This easement is shared by 6 other lots, one of them serving as a driveway for a landlocked property. My questions are:
    1. Since we own the property, do we have a right to pave on the easement without permission?
    2. Can the HOA enforce the full paving rule or could we pave our portion and leave the easement portion alone?
    3. Can we force the easement to be moved or reduced?
    4. If all six lot owners can drive over our driveway, how do we handle any damage/maintenance to the paving?
    Thank you.
    You need to do a better job explaining the situation because some of what you posted doesn't make sense.

    Are you saying that the easement is only 45" wide or is that a typo because 45" is barely enough width for a car to drive on. You say that the owner of the easement is difficult to work with and then say that there are 6 lots that use the easement. By owner do you mean the dominant estate? What about the other 5 lots? Are they not also dominant estates that share the same rights?

    In the law of easements, the person who's land the easement is on is a servient estate and the people (lots) that get to use the easement are the dominant estates. In your case, it doesn't sound like the entire easement is on your property. Is that correct? is the easement also on other lots as well (other servient estates)?

    I will guess that since there is a HOA that this is a platted easement from the subdivision of the land and there is no written easement grant that would explain what rights the dominant estates have nor who would be responsible for the maintenance of the easement. It sounds like a private road that may have the HOA as the dominant estate.

    Your questions:

    1. Without permission from whom? If you are asking can you pave your own property the answer is likely yes as long as you do nothing that would impede the use of the easement by the other dominant estates.

    2. Since we don't have access to the CC&Rs of the HOA we can't say for sure. But clearly you should only have to pave from your property line to your garage.

    3. No you can't. An easement that is appurtenant to the land can only be relocated by agreement of all the estates or by court order. That is not likely to happen.

    4. That depends on who actually is/are the dominant estates and whether or not the easement was by grant or plat.

    So you either come back here and give us a much better explanation of the situation or you should consult with a local land use attorney for your options and understanding of what you situation is.

    Quote Quoting flyingron
    View Post
    If it's exclusive, you can't do anything without the permission of the dominant tenant. .
    Highly unlikely that an easement as described would be exclusive. They are not common and do not involve multiple dominant estates.

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