How Can I Determine Who Has Authority of an Easement?

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“Thanks for being on the net! In Jan 1978, my husband purchased lake-front Georgia property that stipulates in the Warranty Deed: “Also: The Grantor herein expressively conveys and grants to Grantee, his heirs and assigns an easement for Ingress and Egress over other land of Grantor to the property herein described over the presently existing dirt road.” In May 1978, the surrounding acres were sold by our Grantor and platted as a subdivision and lots sold. No mention in that Warranty Deed about Our Easement or any other Easement. On the Subdivision Plat, a notation of “20′ Access” is made where the last half of our easement lies between our property and Lot 1 of the Subdivision, with it ending at the Corp of Engineers property/lake. On the Plat are the Subdivision Restrictive Covenants, which does not mention anything about the “20′ Access” NOR do any of the Lot Warranty Deeds reference the “20′ Access” but only with all stipulating “Said land is conveyed subject to all easements and restrictions of record and all Government Regulations.”

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(1) My Easement runs along my entire North Property Line where 1 of the subdivision road is now, which I utilize until the road takes a hard right and I go straight onto my easement (which we have solely maintained since 1978) down to my property to access my driveway/property, at the end on the left (straight ahead is the Corps Property/Lake).

The problem is the relatively new neighbor (2001). Over the last 7 years, he rarely came up and if he did was not a nuisance but over the last 6 months or so, has come up more often and utilizing my Easement to (a) access his property (b) parking on the easement (c) blocking me from my property. I tried to politely explain that the Easement is not for parking and to utilize his property only; however, he got belligerent and insisted that I had no authority to tell him were to park or not and that he’d soon own it!!! Short of a Civil Suit, who has the Authority to tell him he can’t park on it??? And can he be responsible for all attorney fees I incur to make my Warranty Deed perfectly clear to him???

(2) My husband deeded the property to his Mother in 1984 and his Mother deeded to me in 1988, all deeds reflecting the same Easement Stipulations as noted above. Would the “Grantor” mentioned in the Deed Easement Stipulation be my Mother-In-Law? (Both she and my husband have passed away.)

(3) Since no Subdivision Warranty Deeds or Restrictive Covenants mention or grant any USE of the “20′ Access”, can I not keep the neighbor from even utilizing it to access his property since he has frontage on the main road?

Thank you so much for your insight!”

A complicated situation, and a lot of questions. I’ll try to answer them, but first I need to point out that it’s not clear exactly who has what rights, here. It seems pretty clear that you have an easement. It was granted by the then-owner of the lakeside properties, in a properly-recorded deed. There is the slight problem that the deed doesn’t specify where the easement is in formal surveyor’s language, so there could be an argument as to exactly where your easement is, but it’s pretty clear that there is one. However, having an easement doesn’t necessarily mean that nobody else has an easement in the same place. Most access easements are “non-exclusive,” meaning that the owner of the property retains the right to use the easement in any way which doesn’t unreasonably interfere with your use of the easement–including granting other people easements in the same area. The way you describe the plat map, it’s not clear to me whether the “20′ Access” refers to your easement, or to somebody else’s easement that just happens to be in the same place. At a minimum, a review of all the applicable land records would be required to determine this for sure. On to your specific questions:

1. You can try discussing this issue with the police and/or sheriff as a matter of trespass. However, in my experience, they will often tell you that this is “a civil matter,” leaving you with no enforcement mechanism short of a civil suit.

2. I’m not sure why it matters who the “grantor” is. We speak in shorthand of someone having an easement, but technically most easements are “appurtenant” (as opposed to “in gross”), meaning that they “run with the land”–they belong to whoever happens to own the land which benefits from the easement. In other words, once the easement was originally granted, it simply belongs to whoever owns that land, no matter how many transfers are made (unless one explicitly excludes the easement).

3. Whether you can keep this neighbor off the easement depends on what rights, if any, he has. That would require looking through the title records for his property, at a minimum. If he and his property don’t have any concurrent rights over the same area, then yes, you can exclude him through the mechanism of a civil lawsuit.



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Author: House Attorney

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