Easement question about a fence (tenant, construction, lawsuit, properties)
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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.
It sounds like you'll have to move the wall or skip the project.
Forget about where the fence is. It was likely built without a survey.
This did cross my mind, but my driveway is also in the easement and it is original. Although possible i find it doubtful construction was commenced without a survey...then again anything is possible right?
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.
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.
A very good idea. I have the developer's name who the easement was granted to and have considered getting an attorney to approach the gentlemen with a proposal. The protecting the drive idea is sound. My yard slopes considerably and there is a god amount of debris which has been washing over the driveway over the years.
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.
It sure sounds like it. If code requires the access to be a minimum of 25' wide, it's unlikely that a developer would allow that width to be diminished.
Why anyone would grant an access to get to land behind them is beyond me. Hopefully they got paid a good amount for it...but you're stuck with the consequences.
It sure sounds like it. If code requires the access to be a minimum of 25' wide, it's unlikely that a developer would allow that width to be diminished.
Why anyone would grant an access to get to land behind them is beyond me. Hopefully they got paid a good amount for it...but you're stuck with the consequences.
Yes it amazes me to think someone did this! I see now that this is a mistake on my part as a first time homeowner to not have realized the implications of this easement. I will have to find a work around for this.
.....Why anyone would grant an access to get to land behind them is beyond me. Hopefully they got paid a good amount for it...but you're stuck with the consequences.
I'm going to guess that it was a larger parcel that was split into building sites and the easement was installed by whoever did the original lot split.
It can save you an expensive lawsuit if you have a survey before building anything. Keep your fence out of the easement, OP. You know where the boundary is, respect it.
When the lot behind yours sells, the buyer will probably have a survey done, find out where the easement is located and can make you move the retaining wall. Put the retaining wall and fence on your own property and save yourself a lot of hassle later on.
I'm going to guess that it was a larger parcel that was split into building sites and the easement was installed by whoever did the original lot split.
It can save you an expensive lawsuit if you have a survey before building anything. Keep your fence out of the easement, OP. You know where the boundary is, respect it.
When the lot behind yours sells, the buyer will probably have a survey done, find out where the easement is located and can make you move the retaining wall. Put the retaining wall and fence on your own property and save yourself a lot of hassle later on.
I did have a survey done. that is how the issue came up.
Why anyone would grant an access to get to land behind them is beyond me.
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.
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