Full question:
I OWN PROPERTY THAT IS TOO STEEP TO DRIVE UP ON NORTH SIDE (200' ELEVATON CHANGE).THE OTHER SIDE(SOUTH) ABUTS A PARCEL THAT'S DEED STATES THERE IS AN EASEMENT TO MY PROPERTY ALONG ITS SOUTH SIDE. tHE PROBLEM IS THAT THE DESCRIPTION OF WHERE THE EASEMENT IS LOCATED ON THEIR DEED(IE ALONG THE SOUTH LINE) MAKES IT PHYSICALLY IMPOSSIBLE TO GET TO MY PROPERTY WHICH ABUTS AT THE NORTH SIDE OF THEIR PROPERTY/SOUTH SIDE OF MINE. tHE EASEMENT SHOULD'VE READ ALONG THE EAST LINE OR FROM THE SOUTH LINE... DO I HAVE ANY RIGHTS?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Ohio
Answer:
The answer will depend on the nature of the deeds/contracts involved. Generally, an easement’s use and access can’t be blocked unless thee is cause for termination. A right of way, in the context of real property law, is the right to travel over someone's land and to have the reasonable use and enjoyment of their property as long as it is not inconsistent with the owner's use and enjoyment of the land. The right of way may be a specific grant of land or an "easement," which is a right to pass across another's land. If the right of way was created by a legal instrument such as an easement, then it would be recorded on the land records to preserve the users's rights in the land. It may be possible to file a corrected easement if it was a clerical error, but it may be necessary to renegotiate the easement if blocking of the stated easement is not due to their fault.
Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgment in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
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.
