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  1. #1
    Join Date
    May 2009
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    6

    Default Moving a Fence Because of an Easement

    My husband and I bought our first home five months ago. Our property has a sewage lift station towards the end of our backyard. The yard is completely fenced with a working gate large enough to drive a truck through. The pathway to the station is maintained and completely free of any obstacles (trees, shrubs, etc. nothing, but lawn). The fence and lift station have been here for many years, but now the city public works wants to move the fence over 20 ft so they don't have to enter our backyard. This will cut off half of our yard. The two reasons they gave us were because of our dog (who is large but non-aggressive and stays inside when we're not here) and they need to be able to get equipment back there. We have offered to build a larger gate, however when we came home today from work our lawn was spray painted with boundary markers. Do they have the right to move our fence and take half our yard?

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Moving a Fence Because of Easement

    Do they have the right to move our fence and take half our yard?
    It depends on what right they have to the land. Sometimes a lift station is so large that a city will buy the land outright and not take an easement. But you speak of an easement so let's start there.

    Do you have a copy of the easement?

    That will define your rights and their rights. There is no way to answer your question without that document.

    Did you get a title report when you purchased your home? If so, it will likely have the information on the easement. Also, you can ask the city to produce the easement document.

  3. #3
    Join Date
    May 2009
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    6

    Default Re: Moving a Fence Because of Easement

    Well, I don't have a copy of this document. I guess my next step is to ask the city for that document huh?

  4. #4
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Moving a Fence Because of Easement

    Depending on the language of the easement, the City may have trespassed. The City can condemn your land, but must pay you for it, plus there is a long due process timeline. If the City started to mark the ground, you were not afforded any due process.

    IMO, I would meet with an attorney to review the easement and your rights.

    A call and a letter to the City Manager may be needed to place the City on notice.

    Note: If there is an easement, it should be attached to your deed if the station was there before you bought the property. Any alleged easement after you bought the property should have been negotiated with you- apparently not in this case - thus something doesn't sound right.

  5. #5
    Join Date
    May 2009
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    6

    Default Re: Moving a Fence Because of an Easement

    I have gotten a copy of the subdivision plots, and the easement is shown (marked "UTIL./R.O.W. ESMT."). I was contacted this morning by the director of the city utilities, and he stated that the easement was "city property". He went on to say that an easement across my property didnt exist meaning my fence is illegally on their property. He continued by saying he was doing me a favor by offering to move the fence on city dime.

    How do I know for sure if I own the property the easement is located on?

    Also, why would the section of property be called an easement if I didnt own it? What does that mean...that I have the right of way????? Maybe I dont understand the definition of easement.

  6. #6
    Join Date
    Oct 2007
    Location
    Ohio
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    2,592

    Default Re: Moving a Fence Because of an Easement

    The fence and lift station have been here for many years
    and that means that it is extremely likely that there is an easement under the whole thing, written or prescriptive.

    It does not matter if the particular easement is a part of the deed to your property. In many states, deeds rarely include the details of easements, which are separate, free standing grants. Assuming that if you do not see an easement in the deed for your property and acting on that assumption could be very dangerous and expensive for you.

    The idea that the city would now have to go though a condemnation proceeding to get a legal right for an easement is far fetched. They already have a prescriptive easement at the very least. That means that they have rights which have not yet been reduced to writing, and they will owe you nothing for rights which they can prove.

    Wow, you got your post out while I was still typing!

    If what is stated on the subdivision plat is all the director has to go on, he was just blowing some smoke at you.

    It sounds like a general utility easement to me.

    If you have a deed for the lot on the plat which contains the easement, you are the owner and the city holds a general utility easement. For them to "own" the land and fence you out, they will need to produce a deed which gives them all right and title to the property. Politely inform the director that your records indicate that they have only a general utility easement, and that they have no other rights than an easement grants unless they can produce a deed. I would also politely refer him to the city attorney for clarification if he seems in doubt.

  7. #7
    Join Date
    May 2009
    Posts
    6

    Default Re: Moving a Fence Because of an Easement

    I am going to the city courthouse tomorrow to obtain a copy of the deed.

    The director stated he has been in contact with the city attorney during this entire process. However, Im not sure if anyone associated with the city's side of this debate know the details.

    What should I be looking for in the deed, and are there any other avenues I should pursue? In other words, how will I know if my plot contains the easement (in the deed)?

    Thanks for all the great advice!

  8. #8
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Moving a Fence Because of an Easement

    Your deed does not need to include the easement for it to be a valid easement. Don't fall for that.

    In most states, that is not necessary. An easement was granted in the plat you found. To me, it appears to be a general utility easement (completely valid). That would not usually grant to any utility the right to fence you out and exclude you from property you own.

    But we still don't know your state.

    It is always a good idea to ratchet up a dispute like this to your elected representative (councilman, selectman, whatever) with a polite and concise complaint.

    At the courthouse, you can probably get some help in your search from the staff if you are polite and ask your question without the appearance of any rancor or anger. Don't attempt to plead your case to them or even state it but just ask for help finding any encumbrances on your property in the form of easements or rights of way.

    Good Luck!

  9. #9
    Join Date
    May 2009
    Posts
    6

    Default Re: Moving a Fence Because of an Easement

    I live on the gulf coast in Ocean Springs, MS.

    I have contacted my Aldermen at Large and the Aldermen for my Ward. The Aldermen for my Ward (who is supposed to represent/help me I thought) came over to my house this morning with the city directors (without notifying me whatsoever) to look at the situation. They left some documents on my doorstep, none of which was a deed stating the city owned the piece of property in question (easement). The only official document that was left was the subdivision plat I spoke of earlier.

    However, I located my warranty deed (not sure if that helps?) which just states that I own Lot 12 in my subdivision. No mention of easements is in the warranty deed. Of course this corresponds to the lot enclosing the easement (at least it does on the plat).

  10. #10
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Moving a Fence Because of an Easement

    Thank them for their visit but state that as they did not make an appointment, you were unable to attend the unannounced meeting, and therefore the meeting was without effect.

    Announce a meeting at your own convenience and ask them to be there. Provide another time if the first is not convenient and ask them to suggest two times convenient to themselves if neither of your suggested times work for them. Make every effort to attend a meeting.

    Tell them that the paperwork that they have provided to you indicates only an easement, but in no way implies outright ownership of any part of your property.

    Politely invite them to provide a deed for the property, as the easement documentation in no way provides fee simple ownership of that part of your property.

    Worth a shot but they already have an attorney to play poker with you so I suggest that you line up a local attorney of your own. And listen to her.

    Good Luck!

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