Fence Was Erected 1 Foot Onto Conservation Easement; is That Legal?

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“Recently, we erected a fence on our property and about 1 foot of it extends onto the conservation easement.  Do we need to be concerned?  We did get a permit but have not yet been visited by a township inspector. If/when the inspector comes by, will he or she look to see where the easement is and, if so, will we be required to move the fence?”

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Yes, you should be concerned.  You’ll need to look at the terms of the actual easement to see what you are and are not allowed to do (you may or may not be allowed to put up a fence, for example).

A conservation easement is a little unusual in the world of easements.  Usually, an easement is designed to allow the owner of the easement to make some use of property that is owned by someone else. With a conservation easement, the owner of the easement (usually a government entity) doesn’t really “use” the land so much as restrict the owner from using it.  In a sense, the public is “using” it as open space.

In general, putting up structures is usually forbidden in a conservation easement, but there may be an exception for fences.  You’ll have to look at your particular easement to be sure.

In either case, don’t depend on the building inspector to know or care where your easement is and what is allowed on it.  That’s not usually their job, and even if they make an attempt, you’re still on the hook if they get it wrong.

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Author: House Attorney

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