Full question:
I recently purchased a home in Las Cruces in January 2009 which had boundary walls built around three sides of the property. I was just recently informed that one of the walls adjacent to a vacant lot in which the builder desires to build a new home was built beyond the actual property rights of my home by approximately 3 foot at one end extending to the agreed to common point at the other end. I am now being asked to sign an easement agreement which would allow me rights to this part of the property provided I release the developer and any subsequent owner of the new lot of 'any obligation to reimburse (me) for one-half of the cost of constructing the Encroaching Wall and from any obligation to maintain the Premises. My question is: why should I be held responsible for any cost to rebuild the wall if I wasn't at fault in the first place since I could only assume that the wall was accurately built on my property's boundaries; and why should this even be an issue since the purpose of the agreement is to avoid having to rebuild the wall?
- Category: Real Property
- Subcategory: Encroachment
- Date:
- State: New Mexico
Answer:
In cases of encroachment, a court may award the fair value of the encroached property. This value is typically determined through expert evidence comparing it to similar properties in the area. Sometimes, the court may order the removal or relocation of the encroaching structure at the defendant's expense. To receive punitive damages for an encroachment, the plaintiff must show that the defendant acted recklessly, demonstrating a disregard for property rights. Punitive damages aim to deter wrongful conduct and usually require proof of fraud, malice, or other intentional wrongdoing.
If a surveyor fails to meet the standard of care in their profession, resulting in harm to another party, they may be liable for part or all of a claim brought against the affected party.
An easement can be created by agreement, allowing specific use of another's land. A right of way is a type of easement that permits another to use the owner's land as long as it doesn't interfere with the owner's rights.
Your situation may be influenced by the desire to protect future owners from claims since they are not parties to the agreement. There are two main types of easements: easements in gross, which are personal and terminate with the easement holder's death, and appurtenant easements, which are tied to the property and transfer with ownership. For an easement to be legal and appurtenant, the properties must be adjacent and owned by separate entities. Typically, the easement remains with the property when it is sold.
To terminate an easement, certain conditions must change, such as the easement's purpose no longer existing, ownership merging, or the easement being abandoned. Misuse of an easement may not terminate it but can lead to legal claims. Courts generally assume easements are permanent unless stated otherwise.
The question of who bears the cost of rebuilding the wall depends on factors like when the walls were constructed, whether the property sale guaranteed clear title (like a warranty deed), if a survey was conducted, and who was responsible for the surveying. I recommend consulting a local attorney to review the specifics of your case and documents.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.