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The Basics About Easements

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

REM #LAW 640

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader has property with an easement for his dock and air conditioners. Sam and Ilyce explain the basics about easements and point out some potentail problems for the reader.

Q: I purchased a mobile home 28 years ago. I rented the land for the first ten years. When we were given the option to buy the land or move the home, we bought the land.
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Our contract for purchase stated that the docks and air conditioners were allowed to be on easement land. My dock is partly on easement land and partly two feet of my neighbor’s land. I have had problems in the past, but the current neighbor doesn’t seem to mind the situation.

Can anyone make me move the air conditioners or the dock? The dock has been in its current location for 28 years.

A: Fortunately your mobile home is on land you purchased so the only issue is with the air conditioners and the dock. If your air conditioner is entirely on easement land and your dock is partly on easement land and partly on your neighbor’s land you have to be doubly worried.

If the air conditioners are on your land but the land is subject to an easement, the easement may prohibit the placement of permanent improvements on that land. Simply put, if your land is subject to an easement, that easement gives a utility company, homeowner’s association, neighbor, or even the public the right to use your land in certain situations.

Why do we have easements? Easements can be necessary to distribute water and other utilities to the many lots within a development. In some cases, cable companies have easements to bury cable to service a community. In other cases, easements allow the public to walk through private land to reach a public beach. A community can have an easement to walk along your property to reach a boat house on a body of water. These are a few examples of easements that may affect your land.

Generally, you should never build anything on easement land that could prevent the user of the easement from making use of the easement.

For example, if the person that can benefit from the easement has the right to walk along the easement, you could not build a fence on the easement to cut off his or her access. If there are cables, pipes, conduits, or other items buried under the easement area, you should not build anything on top of the easement area that could not easily be moved.

If your air conditioning units and docks can easily be moved and do not interfere with the daily operations of the parties that own the easement, you’re probably in good shape. Generally, the only parties that can force you to remove the air conditioner or the dock from the easement area would be the party that benefits from the easement. If it’s a utility company and they someday need to dig up the old pipes running under the easement, they would require you to move the air conditioner until their work is done.

You should be able to get a copy of the easement from the county office in your community that accepts documents for recording. Once you have an actual copy of the easement, you’ll have a better idea of any restrictions the easement may place on the use of your land.

In some cases, some utility easements make no restrictions on your use other than give you notice that you should not place any permanent improvements over the easement area.

If the easement area must be kept free of any improvements, the easement holder can require you to remove them. In your case, your 28 years of living on the property should give you a pretty clear picture of anybody that has made use of your property and the frequency of their maintenance of whatever is under your property.

From the sounds of your letter, you haven’t had any problems with the easement in nearly 30 years and it’s unlikely that you will have any going forward.

Now, let’s turn to your neighbor. Your use of your neighbor’s property for all these years may have given you the right to continue to use that part of his property without restrictions.

There is a concept in the law that states that if you have used someone’s property without his consent for a lengthy period of time (in some places, it’s 21 years), you either gain the right to continue to use the property in the same manner or become the owner of that property. Your adverse possession of your neighbor’s property would give you certain rights to the neighbor’s property.

Adverse possession is generally hard to prove and to actually get title to the property; you might have to sue the neighbor to prove your case.

If your neighbor moves, the new owner could request that you move the dock. Then, the fighting would begin. At that point, you’d have a couple of choices: you can either let things stay the way they are and continue with your encroachment onto your neighbor’s property or you could obtain an easement from your neighbor to keep your dock in its current location for an extended period of time.

Unfortunately, if you approach your neighbor to obtain an easement you would be giving up your adverse possession rights that allow you to claim that you have a legal right to keep your dock in its current location.

If the whole situation makes you uncomfortable, you should sit down with a real estate attorney and discuss these issues. Upon reviewing photos and other documents that you might have from your purchase, including your deed and title insurance policy, the attorney might come up with other options that can help.

For example, it’s possible that many years ago your seller received an easement to keep the docks on the neighbor’s property. You won’t know until you do a thorough search of all easements and closing documents.

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




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