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Old 05-20-2016, 05:02 PM
 
Location: Salem, OR
15,498 posts, read 40,206,742 times
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Quote:
Originally Posted by cargoman View Post
My location is Oregon. I thought I would throw this question out before I go see a real estate atty. There is a driveway/easement which runs along the side of my property. A small paved driveway for access to two undeveloped lots behind my and my neighbor's house. I just had a survey done in preparation for removing an existing cyclone fence and having a five foot retaining wall constructed.
What the surveyors discovered is that the unpaved portion of the easement along the eastern side of my property extends one foot into my yard and driveway. This means that the cyclone fence I want to replace with a wall sits on the easement. It appears that two years after construction, after the fence was already up and the driveway was paved, that the original owners granted an easement to a developer.

On a separate survey of the sub division it shows the easement as being twenty five feet wide. Split that and go 12.5 feet and it is a foot into my yard beyond the existing fence.

The easement is described as "an irrevocable and reciprocal access and utility easement" also it is described as"appurtenant to lots 28,32,33 and 34 which are the lots immediately near mine.

Now I am wondering if I am going to have to move my wall back a foot which kind of defeats the purpose of the entire project. I am trying to reclaim some unusable yard by building a wall and back filling it.
I'm a little confused. Are you saying that when you bought the house that the easement didn't show up on your title report? I guess I'm not understanding how you weren't aware that there was an access easement on your property until now.
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Old 05-20-2016, 05:03 PM
 
Location: On the Chesapeake
44,934 posts, read 59,929,483 times
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Quote:
Originally Posted by Silverfall View Post
Due to our urban growth boundaries, developers create a lot of flag lots here as they buy up old larger parcels within city limits and build on them. They are very, very common here.

And some states don't allow properties to become landlocked.
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Old 05-20-2016, 05:13 PM
 
Location: Salem, OR
15,498 posts, read 40,206,742 times
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Quote:
Originally Posted by North Beach Person View Post
And some states don't allow properties to become landlocked.
Yes, Oregon is that way. If people won't grant you access, you can sue for access and get it.
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Old 05-20-2016, 09:38 PM
 
9,891 posts, read 11,682,649 times
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Quote:
What the surveyors discovered is that the unpaved portion of the easement along the eastern side of my property extends one foot into my yard and driveway. This means that the cyclone fence I want to replace with a wall sits on the easement. It appears that two years after construction, after the fence was already up and the driveway was paved, that the original owners granted an easement to a developer.
The easement was granted, after the fence was built. The 25' width is probably the county requirement. The thing you need to do, is to take out that fence. Then put in your wall on the edge of your property but within your property if you desire to do so.

If you checked, the owner of your property at the time, may have owned the rear area, and subdivided it, granting an easement to himself and future owners of those rear lots. Often in the situation you describe, that is how it is done.

Also it is a utility easement. That is the most important as they usually run the utilities down the side of the easement along the side of the paved area, and that is why you need to get your fence out of the way. If you built that wall where planned, when the utility company wanted to put the utilities back there or repair lines in the easement, they would just bulldoze your wall out of there, and then do as they normally do, charge you for the removal as you would be the one in violation of the easement. They would not ask you, but would just do it. You would be the one in violation of the easement, and would be required to pay any costs to remove your wall.

Last edited by oldtrader; 05-20-2016 at 09:47 PM..
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Old 05-20-2016, 10:12 PM
 
9,891 posts, read 11,682,649 times
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Quote:
Maybe there is a way you can get another easement-type document that will allow you to keep the retaining wall until it fails and needs to be replaced. Whoever owns the other properties would need to allow this and you would need to have an attorney execute some sort of document to be recorded with the deeds, I'm guessing. Perhaps you could be convincing that the retaining wall is protecting the driveway from washout or silt or something similar.
Problem as it is both a lane for driving and for utilities. The code probably set the width of the easement. No one would be allowed to change it, by the owner of the rear lots saying it is O.K. The county would just tell you, the wall is a good idea, but put it on your land outside of the easement.

Our 5 acre property has a strip running from the square area where the house and barn sits, and there is a 60' strip down to the county road. That 60' strip has a lane for driving, and over in the other section inside our 3 rail vinyl fence, are electric lines, natural gas lines, and telephone system lines, and cable T.V. line part way down to serve other houses along the county road. After we moved in, the county code enforcement officer stopped by to explain the situation. The first requires 28 foot wide drive/lane/street area. Next the other utilities can be anywhere in the remaining 32 feet and the utility company requires a gate for access to the easement which we had. In our county, when a country property with easements like the OP has, the county code enforcement office pays them a visit to explain the rights others have in relation to the easement. It would save a lot of problems for a lot of people if all counties did this.

As from 1972 till I finally retired I was an investment real estate broker. I have been involved in the easement situations in several states, and knew the rights of others, which most people do not. So he did not give us any information my wife and I did not know, but if we had not both been in the business with our own office, we would very well have had a shock when we found what rights of others consisted of.
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Old 05-21-2016, 09:26 AM
 
1,399 posts, read 1,783,397 times
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Quote:
Originally Posted by Silverfall View Post
I'm a little confused. Are you saying that when you bought the house that the easement didn't show up on your title report? I guess I'm not understanding how you weren't aware that there was an access easement on your property until now.
No I was aware of the easement but just made an assumption about the fence being on the edge of it. It was not until I had a property survey done that I discovered the fence was on the easement.
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Old 05-21-2016, 09:40 AM
 
1,399 posts, read 1,783,397 times
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OK, here is an update. I met with an attorney yesterday. The gist of the discussion was the easement was granted in 2004 by the previous owners. By code it is 25 feet wide mainly for access of very large emergency vehicles if needed. The lots have not been developed for over a decade. I could put the wall were my fence is and it is likely that there would never be a problem. Likely is not good enough, there is still legal recourse for it to be moved at a later date if I put a wall were the fence is now. I went home and remeasured from the surveyors mark. My fence actually sits two feet into the easement. In the end I decided it is better to cover my butt, lose the two feet of yard rather than a ten thousand dollar wall project later. Though my yard may appear a bit more cramped I will still be gaining usable square footage by eliminating the slope. I can make this situation work. I will mark this experience as a lesson learned as a first time home buyer. By the way, the attorney did not charge me for the consultation...very nice of him. Thanks for all of the input.
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