Negotiating A Temporary Easement With A Developer
Ask the Real Estate Lawyer: Real Estate Law Q&A
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A homeowner would like a guarantee
that ranch-style homes would be built adjoining his property in exchange for
granting a temporary easement to the developer. Sam gives advice about how to
negotiate an easement and other issues to work out with the developer.
Q: There is a new residential development being built behind my house and the
developer is requesting a temporary easement to construct a retaining wall.
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The property sits uphill from mine and I am very interested in having ranch
style homes built above my property instead of a two-story home. I have asked
for ranch style homes to be built as a concession for granting the easement.
The developer says that he will do everything in his power to encourage ranch-style
development, but will not give me a guaranteed.
How far can I push this? Can I flat-out refuse the development company’s
request for an easement? What are the types of concessions I might typically
expect to receive in exchange for granting this type of easement?
A: You can probably refuse to grant the easement. Although some area have certain
laws that require homeowners to grant temporary easements to allow construction
in tight spaces or to permit better support between properties, if there is
no such legal requirement in your state, you may have the absolute right to
refuse to grant the easement.
On the other hand, keep in mind that the developer may be able to build whatever
he wants without your easement. The easement may help, but may not be absolutely
necessary. If it’s not absolutely necessary for the developer to get the
easement, you may find yourself out of luck in terms of getting your preference
for a neighborhood of ranch-style homes.
From your letter, it appears that the developer is intent on building more
than one home on the lot behind you. You need to determine what you can live
with or what would be better for you. If you can influence where the homes will
be placed behind your property or what kind of landscaping buffer will be planted,
you may be better off trying to make your lot look better than requiring ranch
While a ranch style home has a lower profile, the larger footprint of the home
may be closer to your lot line. A smarter move might be to request that the
home be placed further away from your property line to give your home more space
Look at your property and the neighbor’s property objectively and try
to visualize what the finished homes would look like. What would be better for
you and what would make your lot more valuable once the construction is finished?
You can push the developer as far as you want, but if the developer can build
the homes without your easement, you won’t have much leverage.
If you decide to grant the easement, make sure that the grant is for a specific
amount of time (you want to know when the developer will be on and off your
property), and make sure the developer restores your property to the condition
it was in before the construction. The developer should also provide you with
evidence that they have insurance in case they damage your property. They should
agree in writing that their work won’t cause your property harm, and if
it does that they will repair it. You should also have a right to see the plans
for the retaining wall in advance and approve them so that you don’t end
up with an ugly retaining wall at your property line.
In addition, the developer should agree that whoever ultimately purchases the
house that gets built will have the financial obligation to maintain the retaining
wall. If the wall is allowed to fall into disrepair, potentially causing problems
for your property, you should have the right to maintain the wall and file a
lien against his property for any expenses you incur.
Finally, some people request a nominal amount of money for the right to a temporary
easement. But it seems that money won’t solve your issue of trying to
protect the value of your home and having a large bulky structure stare down
on your property.
Talk to a real estate attorney before you negotiate with the developer. Bring
all of the information relating to your property and to the neighbor’s
property to the meeting, including pictures of your home and the neighbor’s
lot. Be prepared to talk honestly with your attorney about your wishes and where
you might be willing to compromise.
With all of this information, your attorney may be able to negotiate a win-win
agreement between you and your new neighbor.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com