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Termination of easement that is an undue burden

Discussion in 'Easements & Right of Way Law' started by BobStanley, May 16, 2017.

  1. BobStanley

    BobStanley Law Topic Starter New Member

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    North Carolina
    Hi, I have a series of questions about an easement for a house that I purchased in July 2016. First, the following are quotes taken verbatim from the easement document that provide background for my questions: "non-exclusive, perpetual easement for purposes of ingress and easement."

    Further quoting from the easement document: "[Original Owner/Serviant Estate], heirs and assigns, shall retain absolute ownership of said property and shall enjoy all rights of ownership."

    "[Dominant Estate Owner], heirs and assigns, to the extent possible, shall refrain from damaging or injuring the above described property."

    "...easement is appurtenant to and runs with the lands..." - i.e. this is an appurtenant easement and transfers with the sale of land.

    Based on the non-exclusive, perpetual and appurtenant language in the easement, I concluded this is an iron-clad agreement. However, I also researched online that if an easement is causing an undue burden on the serviant estate, it may be dissolved. Below are the details of my specific case which I hope make this an undue burden and some other interesting factors that I have not been able to find an answer to online:

    My property (serviant estate) has a fence, greenhouse, bushes, and trees all along the easement, which runs on the entire right-side of my house, from the street to the end of my fenced in yard. The fence, greenhouse, bushes and trees in the easement have all been there before I purchased the house in July: the greenhouse is inside the fence and was built 8 years ago; the fence has been there for about 15 years; the trees and bushes were there since before the beginning of the easement, signed on April 15th, 1998.

    The dominant estate is a landlocked house and the easement grants access to the road. Due to the trees, bushes, fence and greenhouse, only walking access is an option, as there is not enough space for a car. The easement is NOT an easement of necessity for the dominant estate, nor is it an easement of convenience: the most convenient path from the landlocked house to the street is through my neighbor's property - my neighbor has a driveway on the side of his house that borders my property/easement and goes from the road straight back to the landlocked house. In sum, the landlocked house is directly behind my neighbor's house but has an easement with me instead, which is not logical. My neighbor's driveway is the most direct route to the road, but my neighbor refuses to let the lady living in the landlocked house access his property because he is worried that doing so would create an implied easement between him and the landlocked house.

    When I purchased my house, the seller and my closing attorney both said in separate conversations with me that the easement will not be an issue, as it has not been enforced in years and the seller had no issues whatsoever. Since then, I have found out that the seller lied and was asked by the landlocked house lady (dominant estate) to take down the fence at time of purchase 8 years ago, but never complied. What makes this really interesting is that the closing attorney the seller used at time of purchase was the SAME closing attorney I used in July!

    I chose to overlook the easement at time of purchase because of the conversations with my attorney and the seller. Since my purchase, the landlocked lady has gotten an attorney to send a request letter to take down the obstructions. Also, my neighbor (owner of property with the driveway that has the most direct path from road to the landlocked house) is an elderly man who is cared for by two renters. The renters, upon finding out about the easement, freaked out that the lady in the landlocked house would walk on my neighbor's property, creating an implied easement, so they started cutting my bushes on the easement, which is illegal because it is my property. I had to call the police, and while the officer agreed with me and told the renters to stop immediately, there was still considerable damage done to the bushes. I have two dogs and they now constantly bark at my neighbors when they are in the yard because most of the bushes are gone and the fence is chain link, so it doesn't give a lot of privacy.

    I want to terminate the easement so that I can plant a row of tall bushes outside my fence (but still inside my property) and get my privacy back. I feel like a large part of my property cannot be used for anything - I want to update the fence as it needs repairs, build out the greenhouse, add bushes on the side, but nothing can be done with peace of mind given the easement. It would be a material depreciation of the value of the house and enjoyment of my yard/property if I was forced to take down my bushes/trees, fence and greenhouse. It is already a major burden to not feel like I can do anything to the entire right side of my property. Is this a reasonable argument for undue burden, especially given that the easement is not necessary and there is a much more convenient direct path to the road for the landlocked house to go through (my neighbor's property)? Also, is the fact that the fence was built 15+ years prior to my purchase and has not been officially protested in court another argument for undue burden - i.e., I purchased my house under the assumption that these features are mine and there to stay, and the price and appraisal value of the house reflects that.

    Additionally, the landlocked house (dominant estate) burned down in 2003. I was told by a neighbor that it was allowed to be rebuilt only because the foundation was intact and was used to rebuild the house on. Was this legal and does this have an impact on the easement? I cannot find an answer to this anywhere.

    To make matters even more interesting, the dominant/landlocked estate has a deck that also encroaches on the easement. Do I have the right to say that the deck should come down since it is on my property and the easement is purely for ingress and egress? While I have no intention of doing this, if I am further pressured to take down my fence I would like to understand if this is a valid recourse.

    Lastly, what would the ramifications be if I were to plant tall bushes outside of my fence without first dissolving the easement? Understanding that the dominant estate can sue me to take them down, the dominant estate is nonetheless not allowed to physically take anything down on my property since the materials belong to me, correct?

    Thank you in advance for your help and guidance! I would really appreciate any suggested next steps from the pros :)
  2. adjusterjack

    adjusterjack Super Moderator

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    Seems to me you have two options.

    Comply with the attorney's request to restore the easement for ingress and egress or resign yourself to a long, expensive court battle.

    I suggest you hire an attorney of your own and review your options. Wanting to dissolve the easement WILL require you to hire an attorney and go to court anyway.

    Or, just ignore the whole thing and see if you get sued or not.

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