Exclusive Easement vs. Private Access Easement

[MarkO]

State: Virginia

Can someone tell me what the difference is, if any, between a "private access easement" and an "exclusive easement" ? Do either of these limit or prohibit use of the easement by the servient owner? Thank you, I've not been able to find anything on this elsewhere.

[Mr. Knowitall]

I can't read the granting language from here, so I can't tell you what it does or does not do. If an easement grants the dominant estate exclusive use of an area of land, including the right to exclude the owner of the servient estate, then that's what it does. If it merely grants access without excluding the owner of the servient estate, odds are that it only limits actions by the servient estate owner that would interfere with the purpose of the easement.

[MarkO]

Thanks Mr. K, there does not appear to be any documentation with regard to the easement other than it being recorded by means of a plat which labels it "private access ingress egress."

However, the easement owner (who is not currently using it but has indicated interest in using it) is telling me (the servient owner) that it is equivalent to an exclusive easement and I can't do anything on it whatsoever.

I guess my question should have been posed differently: If an easement is designated "private access ingress egress" what are the rights of the servient owner absent any other language?

Some legal sites say private access just means that the easement is arranged between two private property owners, others seem to say that it means the dominant owner and servient owner can use it but no third parties, yet others seem to indicate that only the dominant owner can use it.

Just trying to cut through the confusion. It's a pretty big chunk of land, much more than would be needed for a road and I'd like to use some of it (in a way that doesn't interfere with their ingress and egress of course). Thanks for any advice anyone can give me.

[mudpie]

Marko,

This situation has been brought up before on this forum.

Just because a "plat" or "survey" indicates an easement DOES NOT mean that there is a "legal" easement agreement in effect. Surveyors have been known to pencil in descriptions at the request of land owners.

The only legal way of your neighbor to claim such an easement is to provide a copy of a written agreement, recorded easement or a court order.

IMO, I would send your neighbor a certified letter directing him to either provide a copy of an agreement detailing the easement, stay clear of your land, or negotiate a new easement. Just my opinion.

[LandSurveyor]

Just because a "plat" or "survey" indicates an easement DOES NOT mean that there is a "legal" easement agreement in effect. Surveyors have been known to pencil in descriptions at the request of land owners.

One of the most completely incorrect and misleading statements I've seen posted here in a while.

In my 30+ years as a registered land surveyor, I have created quite a few easements by plat only, which, when recorded, are considered to be "in writing" and valid per the Statute of Frauds. And even if I had "penciled" them in.

[mudpie]

I disagree. Unless you have an agreement between two parties...there is no agreement. A majority of the surveyors are honest folks, however collusion does occur, and yes, a penciled in easement does not necessarily mean there is an easement between two parties. Most legitimate easements are recorded with a deed or as a separate document.

I guess we will agree to disagree.

[MarkO]

Just to clarify, my deed has a statement that reads "... (my) property is burdened with a 45' private access easement as shown on attached plat..." The deed and plat were both filed in the courthouse. I do not dispute that the easement exists and is legal, just want to know what private access ingress egress means in terms of who can and cannot use it. Thanks for your advice.

[mudpie]

No problem MArkO, I was just speaking in generalities- not related to your easement.

[LandSurveyor]

In my 30+ years as a registered land surveyor, I have created quite a few easements by plat only, which, when recorded, are considered to be "in writing" and valid per the Statute of Frauds. And even if I had "penciled" them in.

Response:

I disagree.

What part of my statement are you disagreeing with?

If you are actually aware of collusion by a registered surveyor, what did you do about it?

For our original poster, Mr. K has so far provided the only responsive and constructive reply to your original question and the subsequent response appears to be a hijack to another topic and not responsive to the question.

As Mr. K said, we can't read your easement from here, so this is a best guess based on the limited information posted. If the only granting language is on the recorded plat, it is valid and it is is for ingress egress only and for no other purpose. The easement owner cannot, for example, park, party, store his RV, etc. nor allow the general public to use the easement. The servient owner would retain all rights to the easement area not in conflict with the dominant owner's right to ingress and egress only.

I am not an attorney and don't play one here or on TV.

For a definitive opinion, you should run this past a local attorney and ask to have the title research checked and analyzed.

[MarkO]

I am not sure if I should start a new thread here, but since it's related i thought it better to keep all the information together. Apologies if this is the wrong way to do it.

Update: As I was doing some research at the county courthouse, I learned that both the dominant and servient properties were once owned by the same individual. Several years later, the owner sold off the parcel that originally owned the easement and kept the one originally burdened with the easement (now mine). The deed of sale papers between the two parties do not mention the easement other than to say "subject to existing easements, rights of way, encumbrances" and showing it on the plat.

My question: Did the ownership of both properties by the same person extinguish the easement? I have read that this is true, you can't be both dominant and servient owner at the same time. I've also read that in this situation the seller would have to specifically reactivate or reestablish the easement in the deed language. Is it possible that this easement doesn't exist or am I wishful thinking?