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I need to file for an Easement.

Discussion in 'Civil Court, Procedure & Litigation' started by Scott2020, Nov 11, 2019.

  1. Scott2020

    Scott2020 Law Topic Starter New Member

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    Jurisdiction:
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    I have a rental property that has a front house and back house and fenced in the middle. The back houses ingress and egress is through what looks to be an alley way but is actually a utility easement. Both properties on both sides gave half wall the way down. This has been used for access to the rear home for 40 years consistently. One side is blocked and the other side we have personally used for 8 years. Now owners st the end put up a fence and keep locking it blocking my tenets access to there home and blocking there car in or out of there driveway. Do I need to file for an prescriptive easement and if I do do I just file with the court or do I sue every property owner on both sides till the street entrance? I have already lost 2 tenets over this and my third is thinking of leaving now. Any thought would be great thanks.
     
  2. Zigner

    Zigner Well-Known Member

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    How did you obtain permission from the local municipality for this arrangement?
     
  3. Scott2020

    Scott2020 Law Topic Starter New Member

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    I purchased this property and it was setup and being used in this manner. After 7 years the owners at the end of the easement started blocking it. The easement is a water utility easement that looks like an alley way. Both properties are fenced all the way down. We originally thought this was an alley when we purchased the property. I have cut the gate down once and they took me to small claims court and the judge found that I didn’t have to pay for the fence and found that a fence blocking the easement in a “ Continuous Trust pass”. A year latter the put the fence back up.
     
  4. Zigner

    Zigner Well-Known Member

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    I would suggest that you NOT cut the fence again, as you may find that the next judge isn't quite as generous.

    I will ask you again: How did YOU get permission to operate in this manner?
     
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  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    If you own property that connects to the "back house" why should a third party provide you access through their property?
     
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  6. Scott2020

    Scott2020 Law Topic Starter New Member

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    I have not received any permission from anyone. This has just been the access for the back house to enter the street. I have used it for 8 years and the previous owners said they have for over 10 years. There was never an thought given as we both thought it was an alley way. All yards on both sides have gates that open from there back yards so they can use the easement, M back property is the only one that uses it constantly. The property is an 2020 split with a fence between. The back house has a garage and car parking that is accessed from the easement. This easement is 6ft from each property to make a 12 easement. Each yard is fenced to the easement. The last judge said that because each owner had access to the easement, all would have to accept a gate and lock or it’s a continuous trust pass. I have an elderly couple that live in the back and they can’t be blocked in so what are my options.
     
  7. Zigner

    Zigner Well-Known Member

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    You really have no clue as to the status of the area in question. I suggest that you consult with a local real estate attorney about this matter.
     
  8. zddoodah

    zddoodah Well-Known Member

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    Given the situation you're dealing with, why not get rid of the fence?

    Huh?

    One side of what?

    Note that it might be helpful if you uploaded a photo of the property or a handwritten diagram.

    Well...if you want a prescriptive easement, the only way to get it is to file suit. I don't really understand the second part of this disjunctive. You'd want to sue the owner(s) of the property(ies) over which you want the easement.

    I suggest you hire yourself a lawyer ASAP.

    I'm curious what would make you think anything that the OP described would require "permission from the local municipality."
     
  9. Scott2020

    Scott2020 Law Topic Starter New Member

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    Yes Mr. Zigner you are the smarter one in the conversation but if that was not the case I guess we would not be having this conversation on a legal question form now would we. Question that would be helpfully for me would be as follows:
    Would it be easer to obtain an easement since there’s already a utility easement in place?
    Can I file for a prescriptive easement since I’ve been using this way openly and hostile for more than five years?
    When I file do I file straight to a judge or do I sue for Rights with all property owners?
    I’ve been looking online to find out whether I have to sue all parties or just petition the court, but I can’t seem to find a clean answer so if anybody has an answer I’d appreciate it.
     
  10. Zigner

    Zigner Well-Known Member

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    Based on additional information provided after I initially posed this question, it does not seem to matter. My belief (based on incomplete information) was that the OP (or the prior owner) had simply made an entrance to this area that the OP is calling a "utility easement", which would very likely have required permission from the municipality. Based on the additional information, it sounds more like what the OP originally thought it was, namely, an alleyway (that happens to also have a utility easement attached). The OP needs to research this more fully, and will probably want to talk to a real estate attorney for assistance.
     
  11. Zigner

    Zigner Well-Known Member

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    I have no idea if I'm smarter or not, nor is it relevant.
     
  12. zddoodah

    zddoodah Well-Known Member

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    In the abstract, no.

    Yes.

    I have no idea what this question might mean. Lawsuits are filed in the court clerk's office, and a judge isn't likely to see anything relating to the case until at least a couple months later, unless someone files a motion and is able to get it scheduled for hearing earlier.

    You might consider answering the questions I asked you previously. I asked them in order to assist in a possible answer to your inquiry.
     
  13. Scott2020

    Scott2020 Law Topic Starter New Member

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    43925220-9256-4DB3-AADA-E3BF33FD5740.png 666A8306-3932-4767-B914-7E53D43933F2.jpeg This is an satellite view (my property has the icon on it). Second photo is s a picture from my back house entrance and at the end of easement is the gate that was installed.
     
  14. Red Kayak

    Red Kayak Active Member

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    Based on your postings in this thread, you need a lawyer to handle your legal paperwork.

    This is only a legal DIY project for someone who is meticulous and detail oriented in written communications. Spelling and grammatical errors would be your undoing.
     
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  15. zddoodah

    zddoodah Well-Known Member

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    Ok, so there's a row of houses at the top of the photo (along the street), and there's what I agree looks like an alley between a row of houses at the bottom of the photo. And you're telling us that the "alley" is actually a utility easement. The "alley" runs from the street that runs vertically at the left edge of the photo to a point that is beyond the right edge of the photo. Finally, I understand you to be saying that one of the neighbors (presumably the owner of one of the properties at the top of the photo) has put up a gate that prevents a person from driving in the "alley" from the street at the left of the picture to the back of your property.

    All correct?

    If that's all correct, and without being able to read the document that created the utility easement or seeing where the actual property lines are, I'd say you have a big problem.

    For starters, since the utility easement presumably does not run in your favor, you have no standing to do anything about the gate. Have you contacted the utility company in whose favor the easement runs? I assume that the gate blocks its access, so it might be willing to deal with this. Of course, if the utility company doesn't use the easement anymore, then it might be unwilling to do anything.

    You might have a valid claim for a prescriptive easement, but you'd need to sue the utility company and the owner of every property over which your prescriptive easement would run. You could probably, in the same action, sue the property owner who put the fence up to get a permanent injunction against the erection of such a fence. You'll need to confer with a local attorney about this, and the first thing that attorney would need to do (unless he/she knows the answer off the top of his/her head) is whether it's even possible to obtain a prescriptive easement over a utility easement. My guess is that you're looking at a $10k+ retainer and probably a minimum of $20-30k in fees over the entirety of the lawsuit. My further guess is that would be cost-prohibitive for the purpose of preserving the minimal rent for a back house on what appears to be a fairly run-down piece of property.
     
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