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Terminating an antiquated easement that is a major burden

Discussion in 'Easements & Right of Way Law' started by BobStanley, Oct 31, 2017.

  1. BobStanley

    BobStanley Law Topic Starter New Member

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    North Carolina
    My question involves real estate located in the State of: North Carolina

    Hi guys, I am the serviant estate of an ingress & egress easement that is a major burden to me and I am looking to understand how I can terminate it. It is a permanent easement but there are some very unusual factors that make my situation more complex and unreasonable, so I would really appreciate your guidance. Quoting from the easement: "non-exclusive, perpetual easement for purposes of ingress and easement" ... "...easement is appurtenant to and runs with the lands..."

    Usage of the easement: the dominant estate is a landlocked house and the elderly lady who lives in it is heavily medicated and has caregivers. She does not have a car and she never walks on the easement - instead she uses my neighbor's property to get to the road because it is a direct path to the road and my neighbor allows it.

    About my property on the easement: this easement was written almost exactly 20 years ago, and at the time of writing, there was already a fence passing through it. The elderly lady's new caregivers, upon finding out about the easement, have taken it upon themselves to tamper with my property. They have cut down my bushes on the easement, threatened to take down the part of my fence which crosses the easement, and sprayed roundup all over my lawn on the easement.

    About my closing attorney: to put it bluntly, my closing attorney sucked. Most importantly, she did not disclose a key document that explained the easement, which I only learned about recently after seeing another lawyer who did a title search and showed me the document. To clarify, while the easement was in the title I was given at closing, my attorney could not explain some of the language on it because she was missing that key document. Also, when I asked my closing attorney if I may have to take down my fence due to the easement, she said it would not be an issue.

    Question 1: why is there not clearer direction on such an antiquated situation? This easement was made as a gentlemen's agreement in a completely different time period with different laws. Clearly the intent of the easement was never to take down my fence and bushes/privacy or the original owner 20 years ago would have done so. Just because a legal document (this easement) is written to last forever, what happens when it was never followed and now at the whim of malicious caregivers taking advantage of a gentlemen's agreement I have to pay the price?

    Question 2: how is this not a public matter? The government would not have allowed the elderly lady's landlocked house to be built today, but since the government messed up years ago and allowed the house to be built, why are they not responsible for resolving the present situation? If a car manufacturer recalls a car because of a defect, they always compensate their customers in some way. Instead, in this situation, the government messed up, changed the law to prevent future screw ups, but then completely ignored all existing situations because it was inconvenient to them. How can this possibly be acceptable? As a result, in my particular case, a gentlemen's agreement was signed between two private parties, and now the agreement is being interpreted differently and I'm being threatened/harassed to take down my fence. This entire situation exists only because of the government's incompetency. How do I hold them responsible?

    Question 3: is there a strong case for terminating the easement due to abandonment? I.E. the dominant estate never uses it today and has not been using it for almost 20 years.

    Question 4: since my fence has always been on the easement since the time of its writing, do I have a strong case to keep it there? Can I repair it if it's falling apart in some places? Could I still be required to take it down? What about the bushes and trees that have also been on the my easement since the time of writing?

    Question 5: what are my legal rights/recourse in response to how the caregivers have been damaging my property? What makes this extra ridiculous is the caregivers are definitely NOT acting on behalf of the elderly lady. She doesn't seem to care about the easement and has not given me any trouble. She is a nice lady but is not fully present (heavily medicated & diagnosed with schizophrenia) and once told me "I just do whatever I'm told." She is clearly not in her right mind, and the caregivers are acting alone as there was no issue until they started caring for her.

    Question 6: what are my legal rights/recourse due to my closing attorney's negligence? The lawyer I met recently who showed me the missing document explaining the easement that was absent at closing suggested I take this up with my closing attorney. I want to be prepared and understand my rights before meeting with my closing attorney. Is it reasonable to request that my closing attorney's firm represent my interests with the easement until it is resolved to my satisfaction free of charge, since they were negligent at closing? More broadly, what are my rights and what is my closing attorney's firm obligated to do in this situation?

    Thank you in advance for your guidance!
  2. army judge

    army judge Super Moderator

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    Your questions are far too complex for you to receive a correct and useful response.

    I suggest you discuss your concerns with a couple real estate attorneys of your choosing, then hire one if any legal remedies appear to be within your grasp.
    hrforme likes this.
  3. zddoodah

    zddoodah Well-Known Member

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    I don't understand what this question means, but I don't see anything "antiquated" about either the easement or the situation you have described. There is, of course, plenty of "direction" (in the form of case law) regarding easements.

    The term "gentlemen's agreement" has no meaning under the law. Also, you said this easement is 20 years old. What laws do you think are "completely different" between 1997 and now? It wasn't that long ago.

    Nothing in your post suggests that the easement contains any language about this subject, so your perception of "clear intent" is nothing but a self-interested statement.

    "Perpetual" means exactly that, and there is nothing unclear or ambiguous about it. That the owner of the dominant estate didn't use the easement is irrelevant. As far as maintenance of the easement or trespass on land that is not part of the easement, that has nothing to do with the validity of the easement itself.

    Please define "public matter."

    First, your conclusion that the house wouldn't be allowed today is based on nothing but speculation. Second, I doubt anyone at any level of government would concede that someone "messed up years ago." Third, even if some governmental agency "messed up," the easement is a private agreement between private individuals. If you want to take the matter to court, the judicial branch of the government will adjudicate the matter for you.

    That's nonsense. The situation exists because the grantor and grantee agreed to the easement and your attorney apparently failed to advise you about it. If you disagree with how the easement is being interpreted, you're free to take the persons involved to court to resolve the matter.

    You told us that your neighbor's caregivers are using the easement. In any event, you'll need a local attorney to research North Carolina law on this issue to advise you about this (same with your questions #4).

    You're free to sue them for trespass.

    How long ago did you buy the property? The North Carolina statute of limitations for legal malpractice is three years.

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