Posted on 05/19/2016 3:13:02 PM PDT by freedomjusticeruleoflaw
Help please. I have done research and I'm stymied. Simple question for the forum... Can I replace a fence that is on my property, which is covered by an ingress/egress easement, if the fence will in no way impede the intended use of the easement? The fence has been in place for 15 years, needs replacement, neighbor is objecting. I have been getting two answers from the interwebs.
LOL. That was my second guess!
There are zero restrictions of the easement, fence or no fence. Even in the sections nearest to the road they are still 5 feet away.
You already have possession, but with a deeded easement.
Ingress/egress easements run with the title. The specific easement boundaries should be spelled out in your warranty deed. It should also be shown on the property survey. As long as the fence does not encroach on ingress/egress right of way you should be fine. The fact that the fence has already been there for a long time also sets precedence. Just because your neighbor objects does not automatically mean you can’t replace the fence. That’s why you need to dig out the warranty deed and survey. If its a 10 ft driveway easement or something like that then as long as the driveway is open the fence on your property should be hour business.
Need help on links to the law?
A lawyer really is helpful for many though you can do it yourself with some knowledge.
See here...Parcel Mapping Information Delaware County, Indiana
Depends on the easement. Do yourself a favor and hire a surveyor.
“in no way impede the **intended use of** the easement?”
Guess what makes me think you’re being sneaky?
The easement is what it is. You can’t impede *ANY use* it grants your neighbor.
IM (nonlegal) O.
A lawyer would help as well as a surveyor. Is a building permit required. Some states require 35 years to establish president. 15 years may be enough there I have no idea. Arial photographs could be of help. They are free online at my county website.
Many lawyers will give free 30 minute consultations. If you cant get a free consultation, see what a consult will cost. Sometimes case law looks like it would apply, but wont necessarily apply to your situation. The advice you’ll get on the internet is worthless.
What do you mean “covered by” an ingress/egress easement.
Or just dig out the title insurance policy and call the title company and/or the closing attorney and they will settle the whole thing for Free. Calling a surveyor is not necessary and will not answer the legal question.
As a mortgage loan underwriter I have dealt with this stuff a thousand times. The title company calls the shots. Or the closing attorney can pull out the title policy and tell you what’s what with the easement.
You need to examine the language of the easement. An easement can be lost by prescription only if the use is open , notorious and hostile. If the fence defeats the purpose of the easement, the neighbor can compel you to remove the fence.
All our 19 towns in the NYS county require instrument surveys for a fence permit.
Too early for a lawyer. We need more facts. Sometimes Town Laws change and it can’t go back where it was.
I have a friend that has a similar problem with the same exact kind of easement. His problem is that they always want him to help pay for the maintenance of the easement road which he doesn’t use whatsoever. He had to go to the recorders office and county surveyor to get clarification but not sure if he ever ended up getting a lawyer.
How big is the property? And who (how many people) are the beneficiaries?
Town rules/zoning might NOW be in force that didn’t exist years ago. Talk to the Town.
It’s possible that he’s setting up adverse possession with all that maintenance and improvement.>>>> as i recall open and flagrant leads to possession. that appears to be what he is planning with pavement and gates. That should not be allowed on any easement. It sounds like an easement for access to parts of the property not a utility easement.
My best advice is still go to the Town first.
Easement is recorded on the deed for ingress/egress only.
We put the fence on our property line with no objection 15 years ago.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.