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New Garage Needs Maintenance Easement


Ask the Real Estate Lawyer: Real Estate Law Q&A

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A writer is frustrated by needing a maintenance easement for their new garage. Ilyce and Sam explain that a variance may be the homeowners best bet.

Q: I purchased a home in an historic area several years ago and decided to build a garage.

I learned from our local zoning board that a maintenance easement might be required if I was going to build within 3 feet of the property line. My neighbor agreed to sign an easement, but while the lawyer was drafting the easement document, my neighbor sold his house.

Now the new owner will not sign the agreement and I am unable to build the garage I had planned.

No one, including lawyers and real estate people seem to know about these maintenance easements before. Can a zoning board make such a requirement, which essentially prevents me from developing my property?

My new neighbor seems to think that my building an expensive garage will decrease her property value.
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A: You may not like it but most municipalities with zoning ordinances have rather broad authority to regulate rules and regulations relating to zoning.

Zoning codes generally regulate your home’s size, how close it can be built to the street, how tall it can be, how close it can be to neighbors, how many stories can be built and whether you can use it as a single family home or multi-family home, among many other restrictions and rules.

Most people, even real estate brokers and some real estate professionals, will not have all of the intricacies of a zoning ordinance at their fingertips. Some may know that you can’t built a large home on a small lot, others may know that a home is located in a historic district and it’s façade can’t be changed without approval from the city.

In your case specifically, architects and builders that have been working in your local municipality for some time should know the specifics as to how close you could have built your garage to your neighbor’s property.

Unfortunately for you, you did not foresee that your new neighbor might object to your new, expensive garage. Had you known, you probably would have made sure your former neighbor signed the easement before he sold his home. You are now stuck with this neighbor and her fears, however irrational they might be.

Let’s address your question about “maintenance easements.” Some municipalities believe that if you are going to build a garage so close to the property line, if you ever need to maintain the side of the garage, you will need to access you neighbor’s property. To avoid what would essentially be trespassing disputes in the future, the municipality requires you to get an easement from your neighbor giving you the right to use a portion of your neighbor’s property to maintain yours.

In some instances, municipalities have a mechanism in place to grant variances to people in your situation. You would have to present and plead your case before a zoning board and they would determine whether to grant you a variance from the requirement of having the easement. In other instances a zoning board may have no authority to grant a variance under your circumstances. Your best bet is to talk to someone in the building and/or zoning department of your city.

Your final chance is to persuade your neighbor that the garage you plan to build will not hurt the value of her home and will help you out. You can ask for her input into the design of the garage in order to make her feel comfortable with granting you the easement.

Even though you may not want to, you probably can build some sort of garage within the requirements of the zoning code. Your garage may not end up being a two-car showpiece but, rather, a one car garage.

In your case, if your neighbor knows that he will have a one or one-and-a-half car garage three feet from the property line or a two car garage a little closer to the property line, the neighbor may see that it won’t make much difference and decide to help you out.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is The REAL U Guide to Bank Accounts and Credit Cards. This column is distributed by Real Estate Matters Syndicate. This column may not be resold, reprinted, resyndicated or redistributed without written permission from the publisher. If you have questions for Sam and Ilyce, write:Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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