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To: Cincinnatus
“or merely the right to cross the property, which is substantially different.”

No it is NOT. If you are granted a right of way or an easement across someones property you in effect now have control of the property. The owner can no longer do anything that would infringe on your right of way or easement.

It is a cloud on the title and does prevent the owner for using the property as he see’s fit. Combine that with local zoning rules regarding building offsets you can make the owner unable to build almost anywhere on the property.

Additionally, depending on how the right of way or easement is written, the owner would have to care for the property to local codes and/or association rules AND in worse case, maintain the right of way or even improve the right of way to zoning or code rules (as not doing so would be infringing on the access across the property).

The owner still has the title but the right of way holder has the defacto control of the property. The owner pays taxes, the ROW holder gets the use as granted.

The ROW holder also has a right that extends beyond the owners title holder rights and is inflicted on the next owner and all subsequent owners unless otherwise stated in the ROW.

So how is this less control than being the titled owner?

34 posted on 11/15/2007 1:31:22 AM PST by JSteff
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To: JSteff

I would check to see if that is real easement being used. It should be in the plans if it is.


37 posted on 11/15/2007 2:49:40 AM PST by freekitty ((May the eagles long fly our beautiful and free American sky.))
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To: JSteff
So how is this less control than being the titled owner?

I didn't say it was NOTHING. But it certainly is different. You can't build on it, you can't grow crops on it or plant on it or fence it in, for example.

Where it particularly affects the outcome of the case is it is easier to prove. A worn path is by its nature a notorious use. Again, we know nothing about the quality of the evidence in this case. Suppose, for example, you have a garage in back of your house and a driveway that crosses your neighbor's property. It may be your only access to the garage. Suppose further that the driveway was there when you bought the house and your predecessor in title had been using the driveway since his father was a kid.

Somebody from across the country then buys your neighbor's property and puts a fence across the driveway, digs it up and plants pumpkins. Are you wrong to demand that the driveway stay open?

The basic law on this is more than a thousand years old.

42 posted on 11/15/2007 5:04:19 AM PST by Cincinnatus
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