Can the Owner of Adjacent Land Repurpose Our Easement for Commercial Use?

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“When we bought our property it had a 66 foot easement that the seller identified as a means to farm the crop land behind ours. Now 5 years later the estate of the seller has put the crop land for sale, with the intent to convert it to residential with “road” access down our easement. We installed an improved driveway (1/4 mile long) along the easement at a great expense. Can the seller “attach” a continuing drive from ours, or should we totally move our driveway off the easement and leave them mud? Should the seller pay or rent if we leave the drive where it is?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

That’s a fairly complicated question, and will probably require that you involve a local attorney.

The first thing you need to do is look at the document that created the easement. It should specify what the purpose of the easement is, and you could definitely get into an argument regarding the interpretation of that part of it. I’m guessing that use of the road for several residences will be much greater than use for one farm.

Second, I’m guessing from the fact that you paved the road that the easement is not exclusive (in other words, that the back property’s right to use it does not exclude you from using it, too). So yes, there’s nothing stopping both you and the owners of the new homes from using the same roadway.

If you’re asking whether they can pave a portion of the easement that isn’t already paved, again that depends on the document.

Finally, also in the document should be some discussion of how the cost of maintenance and repair is divided up. If there isn’t, then there is probably a law in your state that provides a default division.

If the new use they’re planning to make exceeds the scope of the easement as written, then you are in a position to negotiate some compensation for the additional burden on your property. The exact scope of this will depend on many factors, including what I’ve mentioned above. A local attorney can help you evaluate your position and decide how best to approach your neighbor to resolve this issue.

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Author: House Attorney

A house attorney has answered this question.

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