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Eliminating an easement

Discussion in 'Easements & Right of Way Law' started by Missourian, Jul 30, 2013.

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  1. Missourian

    Missourian Law Topic Starter New Member

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    Easement was created by neighbor and previous owner of my property. Each giving 30 feet on each side of property line that goes down center of the drive leading to my house. Prior to my purchase the neighbor promised to dissolve the easement if he sold his property. Now that he has sold he isn't following through on his promise. His sale closes in a few days. Do I have any recourse? What is required to void this easement. THANK YOU
     
  2. mightymoose

    mightymoose Moderator

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    I suppose your most immediate requirement to handle this is a good attorney. You want to move quickly before any sale is final.
    Is the promise that was made documented anywhere?
     
  3. Missourian

    Missourian Law Topic Starter New Member

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    This was verbal witnessed by my wife the realtor who we purchased through and myself. Would promissory estoppel apply in this situation? I know concerning land everything needs to be in writing in most cases
     
  4. fredrikklaw

    fredrikklaw Moderator

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    MISSOURIAN:

    YES! An easement can indeed be terminated, and as a party claiming termination, you must make a very strong showing by basing your argument on one of 9 different factors no less. Those factors are: Release; Expiration; Abandonment; Prescription; Necessity; Estoppel; Condemnation; Death; Merger.

    That said, you have not mentioned who or what entity was (and is) the beneficiary of the easement, and by that I mean whether it was a Public or Private Easement which really makes all the difference to the outcome of such litigation and the responses you receive. Because if the beneficiary is the Public at large, there will be no termination and that will be that and even a private beneficiary can fend off termination if he shows that the easement was created for right of way, easement of support, easement of light and air, and rights regarding artificial waterways.

    Another stumbling block could be how the easement was created, and perhaps making it a covenant that runs with the land, which is very much self explanatory as to its permanent nature. But perhaps the biggest factor NOT in your favour is what will be termed as your implied consent to the easement by purchasing the house. Because while an easement is a property right to be enjoyed by the beneficiary, it is regarded by general consensus to be a cloud on the title or an encumbrance (if you will) giving prospective buyers cause for pause.

    I presume that the easement was discovered during the title search of the property, at which point you had good cause to discontinue interest in the property, or continue with the purchase despite the encumbrance. So, you can see where a clever attorney can argue that you went through with the purchase despite knowledge of the easement.

    So, it would help your cause immensely if you went back and read through the documents to get a clear picture of the easement’s for what, for whom, and for how long questions.

    fredrikklaw
     
  5. fredrikklaw

    fredrikklaw Moderator

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    SORRY! Double-Dipped by mistake!
     

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