My Neighbors and I Disagree on Their Right to Pave Our Easement, What Should we do?

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“We recently purchased a 5 acre piece of property. Unfortunately we did not have access to the language of the document when we purchased the property. This is what was “told” to us about the easement when we purchased the property. (BTW- we totally understand the importance of READING this prior to purchasing property.) The first Two hundred feet on the east side of our property is bordered by an unimproved county road that is an extension to an existing gravel county road. At the end of the “proposed” road, there is a 25 foot ingress egress easement, into our property, for the next 200 feet to allow our neighbors to access their landlocked property to the north of us. When placing our home 30 feet from the edge of the property line we were prepared for the road that would be developed to the east of our property line knowing that landscaping would block most of the view and that it would be vertually a driveway for our neighbors- thus little use.

Our neighbors have recently brought to our attention that we were mistaken about the extent of the length of the easement. It appears that we have a “perpetual and non-exclusive easement for ingress and egress, as well as the installation and maintenance of underground utilities, within 25 feet of the east boundary” that is on our property. They have stated that they intend to put a road the entire length of the easement- nearly 400 feet. This made no sense to us as the approved county, unimproved road, parallels our property for 200 feet. They only need to grade and improve this area and it will connect to the existing road. In fact, it would be considerably less expensive to improve this rather than plow through the front of our yard. When asked why they would not consider this area rather than constructing a road 5 feet from our front door they indicated- “this is our right”. Let me also mention that we are in the final stages of building our beautiful new home. Our well is also in the easement and we would have virtually no front yard. And all of the trees on the 200 feet of our property would need to be removed to make way for this road. And we feel that it would substantially reduce the value of our home.

We live in Oregon and know that each state is different in how it deals with these legal issues. Do they have the “right” to do all of these things?”

Alas, the answer is another “maybe.”As you noted yourselves, going back and looking at the document that created the easement is critical, since it may specify some of these issues.

Question: If the easement document is clear about where the easement is, then the fact that they have an option to get in and out somewhere else is irrelevant. They have the right to use a 25-foot wide strip of your property for ingress and egress.However, if the easement document doesn’t say anything more, then it is not at all clear that they have the right to pave this easement. (Obviously, if the document says they have the right to pave it, they do.) They would normally have the right (and, in fact, the responsibility) to maintain it in the condition it was in, but changing the surface type is not automatically part of an ingress/egress grant.

It’s not necessarily beyond the scope of the easement, either. It would most likely be one of those balancing issues, and thus could end up being an expensive argument for both of you, if you ended up having to fight it out in court.
Both you and your neighbor would be better off trying to come to a compromise on this issue. In either case, you should look into getting a good local real estate attorney, either to help you fight this issue, or to formalize whatever agreement you come to.