Subdivision plan shows lots, a road and an Easement from the road to one lot lacking frontage on the road. The description on the plan is Easement, but the intention was driveway easement. The application to the planning board and representation to the planning board was for this to be a driveway.
Smith buys the lot with a deed describing two easements: a driveway easement and a parking easement. Two sketches were attached and the driveway easement starts at the road and extends to the parking easement that extends to Smith's land. The deed vaguely describes the easements as driveway and parking. It does state that the intention of the driveway easement is to provide access to Smith's premises.
Smith builds the driveway and uses it.
Jones buys the lot encumbered by these two easements. They were never disclosed to Jones until the closing. Jones questions Smith on the legality of the easements on numerous occasions.
Smith planned to convert part of his house to a garage. He attempts to review the change with Jones who insists that Smith needs relief from zoning for a change in use and will not listen to the proposal. Smith gets a building permit without need for zoning relief (still a residential use). Smith roughs the driveway, constructs the garage, then finishes the driveway over the course of 18 months. Jones becomes cross because Smith does not notify Jones of the construction of the driveway. Then Jones claims that Smith does not have legal right to use the parking easement as a driveway and does not care about the easement depicted on the subdivision plan.
Two lawyer involved, two different legal opinions... Any thoughts?
Driveway Versus Parking Easement
One may use a driveway easement, but may not block it. The parking easement means that a vehicle may be left there for an extended period. The parking easement is a greater burden than the driveway easement. Since the intent was to not land lock the lot, driving through the parking easement is a fair use of the easement.
Paul in PA
Why is it that we drive on a parkway and park in a driveway?
Jerry Seinfeld
Ironically Jones is a transplant from New Jersey...
I like Paul's reasoning.
One has to wonder why the original plat did not just make the driveway part of the (otherwise landlocked) lot.
Well, I know of some jurisdictions in my area where a "pan handle" lot is not permitted, but an easement for a driveway (as above) is permitted. Go figure.
> One has to wonder why the original plat did not just make the driveway part of the (otherwise landlocked) lot.
One common reason for that is to achieve required lot areas for the zoning. Another is the non-exclusive nature of an easement. Both Smith and Jones may use the easement for a driveway, only Smith could use it if it was fee.
Since he has to drive over the parking easement to get to his lot it doesn't seem limited to parking on the parking easement.
> Jones buys the lot encumbered by these two easements. They were never disclosed to Jones until the closing.
Presuming that Smith's deeds were properly recorded Jones has no leg to stand on. Recording establishes constructive notice of their existence. Checking the record is what "due diligence" is all about. Jones may possibly have some recourse via the former owner, his real estate agent, or the title company, but none via Smith.
> .... Then Jones claims that Smith does not have legal right to use the parking easement as a driveway...
Jones may have something here. But that is about all he has.
>and does not care about the easement depicted on the subdivision plan.
Mr. Jones better be careful or he may end up paying Mr. Smith's court costs.
> Two lawyer involved, two different legal opinions... Any thoughts?
Quite likely one true opinion, a client with more money than brains, and a lawyer willing to cash his checks.
> Quite likely one true opinion, a client with more money than brains, and a lawyer willing to cash his checks.
:good:
I testified in an access easement case with a recorded easement blocked by defendant with a gate. His attorney pursued it all the way to trial and lost. The Judge just took my file, copied it and ruled there is an easement, DUH!
> ... His attorney pursued it all the way to trial and lost....
Attorneys will do that in an effort to extract a favorable settlement, well knowing that their client has no case.
I have a couple of questions. Who gave the easements to Smith, and were they written before or after the plat was filed?
Going off of what you said about the Plat, it sounds like an access easement. Down here we call them flagpole lots, the leave just enough of a strip of land to get to the back property.
Smiths lot enjoys frontage on a different road, but access was blocked with a planting easement and landscape berm for the subdivision association.
The developer who created the entire subdivision gave Smith the easements. They were written after the subdivision was filed but before Jones purchased his property.
For the other question: Should Smith have notified Jones before completing improvements on Jones' land in Smith's easement? While it would have been nice, it is my understanding that Smith had no need to notify Jones of the work to be performed.
Thank you all for the great responses. They fall in line with my non-legal opinion as well...
Jones has no one to blame but himself. When he found out the property was encumbered by an easement; is when he should've raised a protest. He bought the property knowing it had this easement, now he has to live with it.
The neighborly thing for Smith; would've been to notify Jones of the construction. But if he thought Jones would've objected to it, he probably didn't want the hassle.
> For the other question: Should Smith have notified Jones before completing starting improvements on Jones' land ...?
As I understand the story, he did, and was rebuffed. I'm sure that work like that required a building permit, and in most places the building permit need be posted before the construction starts. So, in that sense, yes, Jones should have been notified.
I am not sure about the easement, I think Jones may have a point. Yes the easement was giving by the developer, however it was after the plat was filed in the courthouse, sounds like it should have been a replat to give him access to the lot, not an easement. As the agreement was already made between the developer, the public, and city/county. That's the point of a plat to show everything. The developer changed his terms of the agreement. If it wasn't already platted this would be a slam drunk win for Smith.
I would let the lawyers and Judge solve this. One landscape berm sure did cause a problem.
If the easement was of record when Jones bought his lot, I don't see that he has a case.
I don't doubt the access easement, just the way it was written, and not by doing a replat of the Lot in question. Its the changing the land and pouring a slab I am referring to. Did the access route needed to be improved?
There was a court case in Texas about an access easement.
Landowner A sold his back property to Landonwer B, the access to the property B was a road right by the bedroom window of A's house. It never bother A when B drove past his bedroom window or woke him up at night.
B sold his property to a concrete company. The company would drive their trucks past his window 24/7, torn up the land on the route and had to improve the road.
A sued the concrete company his reason was the company changed the access easement. A won the case.
California Courts will consider the historical use of a recorded easement in these type of cases.
In one case the easement description included the entire servient parcel but the easement user historically stayed on the pavement. The Court ruled they can only use the pavement.
