Easement Laws (houses, subdivision, maintenance)

[AsForMeAndMyHouse]

A couple questions on Montana easement laws.

For the sake of simplicity, NEIGHBOR 1's (N1) land borders the main road. NEIGHBOR 2 (N2) is the one who needs to pass through NEIGHBOR 1's property to access her land. N3 is on the other side of N2--even further from the street at a dead end.

1. Can N1 ever add a gate across the easement?
2. Can the gate ever be locked?
3. If N1 wants to install asphalt over the shared dirt road, would N2 be required to chip in?
4. Can N3 lock her gate assuming there are no other houses after hers?

Kind'a off the wall questions, but I'm going through this very thing with a client here and was surprised at the laws here and before I say what happened, I'd like to see your response IF YOU KNOW!

[Stephan_K]

I think the language of the easement would dictate answers to those questions as there can be many.

If the easement language is a true road easement with utility right of ways I would say the following...

1. Can N1 ever add a gate across the easement? NO
2. Can the gate ever be locked? NO
3. If N1 wants to install asphalt over the shared dirt road, would N2 be required to chip in? NO
4. Can N3 lock her gate assuming there are no other houses after hers? NO

Now if it was just a "drive way" type easement, you can put yes to a few of those I would guess with stipulations...

[jimj]

It depends on the easement. Like Stephenk said a lot depends on the actual easement agreement which can be found at the plat room, they'll make a copy for you. If it doesn't mention gates then I believe yes one could be added (because it's not specifically prohibited) BUT everyone with a right to cross would have to be given a key if it's locked. If it were me in the N2 position it'd never remain locked and the lock might get "lost" frequently since I'd not want to go out and open it for visitors. It also depends who really owns the road. We lived in a subdivision where we maintained the road but come to find out years later it was actually owned by the county. The road agreement done at the time of subdivison was that the homeowners would maintain the road (and we all thought we owned it for years) until such a time as it was annexed by the city (which is when we found out we didn't own it).

If N1 wants to pave it then N1 is doing so on their own unless there's something in the road agreement that specifically says everyone has to pay for paving. If it's an old agreement I'd guess it talks about "shared road maintenence" which in my understanding has nothing to do with paving, just maintaining the current surface which I'd almost bet is gravel or dirt.

An example, in our current subdivision we have a 1/2 mile entrance road that leads to our subdivison where we have a 1/2 mile circle road or an effective dead end leading back out. When our subdivision was created the developer made an agreement (easement) with the landowners on our access road stating that for giving us easement across their land he'd put in a paved road and they never had to pay for any maintenence. It also said that no gates may be installed and that they couldn't do anything to damage the road or they'd have to repair it. Needless to say they're loving it, they get plowed for free,swept,weeds cut etc all for nothing but at the same time cannot put anything in the road/utility easement which is 60 feet wide.
Hope this helps, I'd go to the plat room and get the actual agreement as this will tell you exactly what is allowed.

[bigtrees]

Originally Posted by AsForMeAndMyHouse

1. Can N1 ever add a gate across the easement?

Gates have the potential to be seen as access restriction, which probably is not allowed under the terms of the easement.

Originally Posted by AsForMeAndMyHouse

2. Can the gate ever be locked?

A locked gate could be seen as an access restriction, which would violate the terms of the easement.

Originally Posted by AsForMeAndMyHouse

3. If N1 wants to install asphalt over the shared dirt road, would N2 be required to chip in?

No, unless a separate recorded maintenance agreement has been filed.

Originally Posted by AsForMeAndMyHouse

4. Can N3 lock her gate assuming there are no other houses after hers?

Sure, unless N1 and N2 have an easement to use the road. If they do, then N3 cannot lock her property.
[/quote]