Full question:
I have a property that I have owned for 20 years that has what the local zoning board calls a pass through right of way on the rear of the property on the deed. However, the right of way exists on paper only, as the property is actually on an undeveloped overgrown bank to a lake that slopes at a 45 degree angle. My neighbors nor want to fill in the property and grade it so they can drive to their property. There has never been a driveway or any access on the land in question to their property. They have always accessed their property using a driveway adjacent to the right of way that is owned by a railroad. Can my neighbors fill in the property without permission? In addition, the build up would be immediately adjacent to and above my home, creating additional pressures on the foundation and endangering the safety of my home.
- Category: Real Property
- Subcategory: Easements
- Date:
- State: New York
Answer:
An easement is a property interest allowing its owner to use another's land for a specific purpose. The property benefiting from the easement is called the dominant estate, while the land burdened by it is the servient estate. Easements can be created through a deed, continuous use, or necessity. The terms of an easement, including its location and maintenance responsibilities, are defined by the agreement or instrument that created it.
Once established, the easement owner has the right and duty to maintain it, as long as their actions do not interfere with the landowner's use of the property. Improvements to the easement are allowed if they do not disrupt its intended use. Easements can be renegotiated or terminated under certain conditions, such as abandonment or changes in ownership.
A lateral support right ensures that landowners' property is supported by neighboring land, preventing collapse or landslides. If a neighbor excavates their land, they must take measures to prevent damage to adjacent properties. If your neighbors attempt to fill in the right of way without permission, it could violate your lateral support rights, especially since the fill would be above your home and could endanger its foundation.
Legal action may be necessary to address this issue, and it is advisable to consult a local attorney who can review the specific facts and documents related to your easement.
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.