Not another easment question!

[Foxpoint]

Hi all,

I live on a piece of property (parcel A) that is accesible via a stone driveway easement across parcel B. The easement was filed by the previous owner, is perpetual, and the wording is to the benefit of me. Also state law stipulates that a landlocked parcel with a residence must have access. Basically the owner of B can not prevent me from accessing the road. ( the easement is currently the closest way to my property from a county road that doesn't cut across wetlands or state forest. )

Basically, it says that A & B are both responsible for the maintenence / construction / etc for the portion of the easement serving buildings on parcel B. The buildings for parcel B only go less than 1/4 of the driveway. Therefore, the owner of B is only currently liable for maintenence of 1/4 of the driveway. I am responsible for the rest of the driveway according to the wording of the easement.

There is one area of the driveway that is quite potholed because it is in a low area with a lot of standing water. This is in the part I am responsible for.

Parcel B's 8 year old son plus another neighbor's son ride their quads on the driveway to a quad track owned by "B". Being that the kids are around 8, they don't go straight to the quad area if you know what I mean - they horse around on the driveway. In addition, they do not wear helmets when riding their quads.

My question surrounds liability - what if the neighbor's kid gets hurt after hitting one of the potholes on the driveway? Since technically I am responsible for the maintenence of the driveway, would I have a possible liability exposure?

I am kind of stuck on whether I even have the authority to set rules on a piece of land I have maintenence responsibilites but no ownership.

Any advice would be appreciated!

 

[SnowRidge]

Interesting question. Might be worth a chat with a local lawyer or maybe your insurance agent. The thought of having those kind of concerns makes me glad I don't have to deal with that kind of easement.

 

[homeinwestIL]

Since, as you describe your easement, you have the legal responsibility to maintain that portion of the roadway, I would say that you would be liable for any injury caused by failure to reasonably maintain. Fix the potholes and pay your insurance premiums on time.

 

[Bob_Skurka]

We have an easement issue in our neighborhood and I am on the board so I have some understanding of easements from dealing with the issue, however I am not a lawyer.

It is my understanding that the easement you describe is for access. It is also my understanding that the users of the easement are responsible for the maintainence. While you are the primary user, for ingress and egress, of part of the easement, you both share another part of the easement as a common drive. What you presume, and I think incorrectly, is that a child who is 8 is not a user. It would strike me that part of what you consider to be your responsibility is also being used by the children of the owner of lot "B" and in my eyes, they have a right to use it as they (the parents) actually own the land, you simply have been granted an easement to use it. Therefore, you could make a strong case that the owner of lot "B" is also partially responsible for maintaining more of the easement. Likely that would create hard feelings. However, I doubt you could lay down rules for use of property that you do not own, but that you are required to maintain to your use standards.

 

[TonyV]

Welcome to the forum Foxpoint. Legal issues aside, have you talked to the owners of lot B about your concerns? Hopefully your on speaking terms with these folks and they would be understanding of your dilemma. I believe that Bob is correct about this. You've been granted easement for access but lot B still owns the property, as you've stated. Since your rights to access clearly state that you are responsible for upkeep on the portion of the drive that is unique to lot A, then thats where your responsibility, and liability end....as long as you maintain that portion of the drive in a reasonable state germane to its use. Therein lies the grey area....'what is reasonable upkeep?' An arguement can be made that the lot A portion was not reasonably kept and resulted in injury. In the same breath, you could also claim that since those kids were using that portion of the drive that it is a shared responsibility. I would speculate that a judge would decide that both were true, and assess any damages on a prorated usage basis....perhaps 50/50, perhaps not. But why speculate at all. If I were in your shoes, I'd go above and beyond the call of duty and make sure that the part of the drive that is your portion is kept in the humanly best condition possible given the type of drive that it is, which I'm assuming is dirt/gravel. If you don't have a box blade to adequately grade the drive, then get one. Better to spend a few hundred now, rather than be responsible in part or in whole for many thousands later. And the best part is....more seat time. /forums/images/graemlins/wink.gif
Perhaps the owner of lot A has a box blade that you could use..or, if not, would be willing to share in the cost of one. To me, this whole thing boils down to doing the neighborly thing, or to create animosity. Given the oppurtunity, I'd take the neighborly route every time, as long as I get the same courtesy in return. Hopefully you have the type of neighbor that appreciates your concerns.

...Tony

 

[DocHeb]

</font><font color="blue" class="small">( Basically, it says that A & B are both responsible for the maintenence / construction / etc for the portion of the easement serving buildings on parcel B. The buildings for parcel B only go less than 1/4 of the driveway. Therefore, the owner of B is only currently liable for maintenence of 1/4 of the driveway. I am responsible for the rest of the driveway according to the wording of the easement.)</font>

By my cipherin', if A & B share responsibility for the first 1/4, and A is responsible for the remaining 3/4 - B would have 1/8th and A would have 7/8ths of the total upkeep of the road.

I'd spend a little time fixing up the road.

 

[8NTX]

If an accident with injuries were to happen, this would be one for the lawyers and insurance companies to fight over. It is my belief that the insurance company of fee owner of the land (B) would probably pay any claim. Then probably file suit against you or your insurance company for reimbursement if you were not properly maintaining the driveway. But I am also NOT a lawyer. Ditto on the box blade. And check if your ins. co. covers any easements not on land that you own.

Steve

 

[OkeeDon]

I'm not a lawyer, either, so this isn't legal advice.


B owns the property upon which you have the easement. Your easement does not lessen any of his rights regarding use of the property, unless it is so stated in the easement. Therefore, as you suspected, you don't have the right to set any rules or restrict the access to the easement for B or anyone he designates, including his 8 year old. You can't stop the feller from horsing around on the road.

Your esasement grants your the right to use the property for access, but also creates a specific obligation to maintain the road. If you don't do a good job, and B's kid gets hurt as a result, you're gonna be liable.

The one negotiating point you have, it seems to me, is that if B's kid and his buddies are tearing up the road with their quads, doing donuts or otherwise loosening it to contribute to the potholes, you might be able to defend by showing that it was impossible to keep the road up to reasonable standards given the kids' behavior. If you plan to use that as a defense, better document the heck out of it, including photos and videos.


But, as others have said, it would be much more neighborly to express friendly frustration to B, letting him know that you're having a tough time maintaining the road because of the kids, and getting B to restrict the kids' access. You're also giving him notice that you have the intention of maintaining the road, but are finding it difficult because of something you can't contrtol -- and he can

Of course, if you haven't been making a diligent effort to maintain, all bets are off. Let us know how it comes out.

 

[Foxpoint]

Okee Don pretty much hit the nail on the head - the section that is bad (enough to throw someone off a quad if they aren't paying attention but nothing to a quad operator who is paying attention) is about 75 feet long along the edge a swamp where the water level is about 3 inches below the road grade. When it is wet (like it has been since I bought the place a year ago) the swamp sometimes overflows onto the driveway thus creating the potholes. The driveway was graded so water would drain off the sides but the kids would do donuts in the wet areas and wear down the grade of the drivway so water just pools there.

We get along well with all the neighbors so I'm confident a solution that satisfies everyone can be worked out. The good thing is the owner of the land for the easement thinks they are jointly responsible for maintenence of the entire driveway. /forums/images/graemlins/grin.gif I don't think they read the easement agreement when they purchased the house.

Here's a quick description of our properties: both A and B were owned by the same person. A while back, the original owner split the 33 acres into two parcels - A (13ac), and B (20ac). The original owner passed away about 4 years ago, was in a world of debt at the time and both parcels were bought by an invester at a firesale price.

The investor filed the easement so there wouldn't be any issues for the future owner of "A" having road access. We purchased the property last June - before we signed an agreement of sale, we had an attorney look at the easement wording and give us the pros and cons. In the end, we had warm fuzzy feelings about it and proceeded with the purchase.

The owners of B bought their parcel about two months after us. My wife ran into them while they were looking at the place and gave them tips on the closing process ( we had a lot of hurdles to go through to reach closing due to the uniqueness of the property). Included in her conversation was to have their lawyer look at the easement wording before they signed the agreement of sale and walk the entire property because about 9 of their 13 acres is wooded swampland.

Once they moved in, they were surprised at how much swampland they owned. In addition, we asked them if they understood the easment wording. They replied they signed it real quick at closing but didn't read it carefully. That's why they think they are jointly responsible for the entire driveway. /forums/images/graemlins/shocked.gif

 

[KubotaSteve]

I have a similar issue in that 50 feet of my property is an easement back to 32 acres that is currently a soy bean field but is on the market. I asked my lawyer what would happen if someone bought it and their kids were running 4 wheelers up and down the road and got hurt. He said probably nothing, but keep insurance up to date. He also said if he was the lawyer for kids family he would take me to court but likely wouldn't win.