What Exactly is an Easement Encroachment?
Easement encroachment is defined as the encroachment of a structure or fixture on an easement in favor of a landowner. For example, if you own a home with an easement in favor of the water district for water pipes, and those water pipes sit in the driveway of your neighbor over a ten foot wide easement, you may have an easement encroachment. It is important to remember that easements may exist in favor of not only water companies, but also sewer companies, electric companies, telecommunication companies, cities, counties, etc .
Easement encroachment differs from other types of encroachment on property interests. The most common example of encroachment is a fence on the neighbor’s property – that is not an easement encroachment, because it relates to the encroachment on a true fee interest. Also, there are common instances of commercial lease encroachment, when a company expands its use of the property beyond the scope permitted by the lease. That too is not an easement encroachment, because it is an encroachment on a leasehold interest.
The Significance of Having an Easement Encroachment Agreement
One reason why an Easement Encroachment Agreement is so important is that it avoids misunderstanding. When there is an encroachment of an easement but no written agreement, the owner of the real property that has the encroachment can terminate the easement, and perhaps even recover damages from the easement owner. Likewise, the easement owner can seek legal recourse to prevent an obstruction or to be allowed to continue their encroachment. An Easement Encroachment Agreement provides certainty, limits claims for damages, and may even eliminate the need for freeways and other costly government actions or court proceedings.
Easement Encroachment Agreement Basics
When negotiating an easement encroachment agreement, the following are the essential terms that must be included:
A. Identify the parties
B. Specifically identify the encroachment, including a description of the improvements as well as a description of the effect of the encroachment on the servient tenement. A legal description of the property is typically used. The description should include the dimensions of the encroachment.
C. Specify the term of the easement.
D. Specify the extent of the encroachment.
E. Specify who will pay for the relocation of the Improperly Placed Improvement; the cost of relocating the encroachment, if necessary, upon expiration of the easement; and any costs attributable to maintaining the encroachment.
F. Include any requisite governmental approvals, such as a zoning change.
Legal Considerations and Provisions
As outlined in the previous section, easement encroachment agreements spell out specific rights for a property owner to make use of a portion of an adjoining property. Encroachment agreements are often for those extra few feet (or inches) of space that may have been utilized for many years but for which there was no formal agreement in place. The most obvious reason for the lack of prior agreement was because no one knew that the area in question was officially encroaching.
So what happens if you find out that part of the area you are using to park your RV is not actually covered by an easement? What happens if it turns out that the space you are stumbling over to get to your boat is not part of an access easement that you thought was included in the deed? Do you simply continue to use the areas in question until the property owner who claims to own the land you are encroaching on comes knocking at your door?
While the obvious first step might be to call your attorney, in the absence of a budget for this venture, the following general areas should be considered: The road between land ownership (property rights) and easement ownership is not always a straight line. Arden v. Marchant, (CA 3 2015) 173 Cal.Rptr.3d 510. Although the easement owner has no rights other than those set forth in the easement, a property owner is still bound to comply with all applicable legal restrictions on the right to use its land. This means that property owners (and all users of such property) must not only abide by the easement rights of others, but may also be subject to restrictions on the type and manner of their use. For example, while a property owner has the right to plant a garden in its yard, the owner may be precluded from planting trees that shade the adjoining parcel. In future lawsuits, the court will give deference to easement owners. Anderson v. Eaton, (1945) 27 Cal.2d 528, 531; Corwin v. Los Angeles Theolog. Seminary, Inc., (1962) 58 Cal.2d 862, 872.
It is worth noting that while property owners must abide by all applicable legal restrictions on the use of their property, easement owners often do not. Unless restrained by express conditions in the easement deed (and they are rare), an easement owner may generally alter or develop their property without regard to whether the restricted property will be injured. Becker v. Stackpole, (1942) 19 Cal.2d 713, 716. However, certain uses of the easement property may not be protected. For example, a nuisance created by an easement user, or a change in the manner of use not contemplated by the original grant, may be enjoined or restrained. Baker Pacific Corp. v. City of Glendale, (1985) 178 Cal.App.3d 739, 753-54; McMillan v. Kamsky, (1976) 61 Cal.App.3d 963, 970.
Easement encroachment agreements are inherently contractual in nature. Therefore, many of the same basic legal principles that bind (and may alter) every contract bind easement encroachment agreements. While the parties are making special arrangements with each other, first and foremost, courts will be considering the "party covenant" – i.e., the term of the agreement that is strictly enforced.
How to Draft an Easement Encroachment Agreement
If you believe an easement encroachment agreement makes sense in your case, it is important to act promptly. A right to an easement acquisition or prescription easement may be lost if the property owner successfully gets a court judgment on the issue, and proceeding without an agreement subjects the encroacher to liability for an injunction (removal of the encroachment) and damages (potentially treble damages). The basic steps to drafting an easement encroachment agreement are as follows: Gather your documents. Determine what documents or maps you have that demonstrate the easement location. This can include title documents, grant easement deeds, and historical maps. Consult with a legal professional. Meet with a legal professional to review your plans and document collection. We strongly recommend consulting with a legal professional to ensure that you have a solid framework for your agreement before presenting it to the other side. Prepare the draft agreement. Based on your documents, drafts an easement encroachment agreement . The easement encroachment agreement should be tailored to your particular situation. Contact the other side. Once your draft easement encroachment agreement is complete, send it to the other side to gauge whether the other party is interested in your proposal. Negotiate the agreement. Discuss any suggested revisions with the other side until a final easement encroachment agreement is reached. Locate a notary public. Once the easement encroachment agreement is finalized, sign and notarize the documents. Notarization is essential for recordation with the county recorder. Record the easement encroachment agreement. Once signed, record the easement encroachment agreement with the county recorder to keep it in a public record. If there is no booking fee required, the easement encroachment agreement will be recorded within 1-3 days. If the recording fee is high, we suggest exploring other options such as filing a Lis Pendens which puts everyone on notice of the rights granted under the easement encroachment agreement.
How to Resolve Easement Encroachment Disputes
The most frequently asked question about easement encroachments is what do I do if I’m involved in a dispute about it? This is usually a situation where an easement holder has a favorable easement description which may have provided for a specific width and/or location for the easement. The owner of the servient estate (the parcel over which the easement holder has rights) has used the easement differently. The easement holder, relying on his or her legal right to use the easement, exercises its rights and the property owner objects. If the parties are unable to resolve the issue between themselves, the easement holder may be able to sue for specific performance (an order by the Court requiring the servient owner to comply with the easement description). Of course, the great unknown is that sometimes, frequently, the easement description offered by one party or the other is not clear. For example, it’s not clear whether the easement description allows the easement holder to use the property exactly as it has been used, or instead whether it only permits some of the uses. The Court will need to reinterpret the easement and choose between the interpretations offered by the parties. If the easement description has an ambiguity then all options are on the table. It may be that not only is the easement holder required to move its use, but maybe that the owner of the servient estate is required to allow all of the uses described in the easement. Judges and juries can be unpredictable.
There is also the suggestion of using mediation to resolve the dispute. Depending on the parties involved, this can be a cost-effective option.
Easement Encroachment Agreement Case Studies
To shed light on how easement encroachment agreements have been used in real-world cases, we can look at the following examples:
In Common Developers v. District of Columbia, 831 A.2d 862, 864 (D.C. 2003), a dispute arose when the owner of Lot 27 in Square 2898 erected a wall fence on the easement area of Lot 3. The owner of Lot 3 filed suit against the owner of Lot 27 for trespass of the 10-foot easement on the eastern side of Lot 3. The common ancestor who conveyed Lots 3 and 27 to their respective owners expressly provided that "there is a 10 [foot] wide easement for ingress, egress, maintenance and repair, with the right to cut any roots of trees or shrubs on either property that may injure said building as may be necessary into which this deed is made."
The court held that the agreement did not intend to strip successive owners of the benefit of the easement. Under the District’s law of easements, an easement has been defined as any interest in real property that grants the holder use of another’s land for a stated purpose. As such, the court ruled in favor of the owner of Lot 3.
In Dillard v. Cheung, 956 A.2d 1123 (Va. 2008), the Virginia Supreme Court dealt with a dispute between the owners of two parcels of property (Cheung and Dillard) bordering the Appomattox River in Virginia over a 100-foot wide riverfront easement that ran along the northern edge of the parties’ properties . In 1936, the original title owner of the Dillard property, Mrs. Franklin, conveyed to Mr. Lovelace specific parcels and a right-of-way easement that run along the northern edge of the parcel later sold to Dillard. The conveyed 100-foot strip of land that Lovelace later sold to Cheung was subject to the easement in favor of the Dillard parcel. However, the easement was subordinate to the conveyance of the right-of-way, and thus did not prohibit construction of a road across the easement. Subsequently, Ma’s predecessor-in-title, Mr. Cheung, negotiated sale of the property situate over the easement and paid a $5,000 cash payment to Dillard. Cheung’s predecessor in title also constructed a road across the easement. Dillard later brought suit against Cheung for damages and injunctive relief concerning the construction of the road, ostensibly alleging irreparable harm that would be "inconsistent with the enjoyment of the land thereafter" against "communities of color." The court rejected the plaintiff’s argument, reiterating that encroachment on easements are "firmly favorable" in policy and denying with prejudice Dillard’s claims for damages and injunction.