Dear Alex:
I own a vineyard and the most direct means of access is by using a 50-foot wide driveway easement which crosses my neighbor’s property. The driveway itself is only 20 feet wide.
The easement is recorded with the county and was granted 50 years ago.
Recently, the neighbors told me that they will be renovating their landscaping and they intend to build a koi pond, which extends 10 feet into the driveway easement.
Can they do this?
An easement can be described the right to enter someone else’s land. Easements can be tricky because although an easement is not an ownership interests in land, an easement can dramatically impact the ability to access and use a property.
Easements can be created in a number of ways, including by express grant or by necessity. The restrictions on how an easement can be changed depends upon how the easement was created.
In this case, you have an easement which was created by grant. This means that your easement, and your neighbors’ right to enter into and encroach upon the recorded easement area, will be subject to the rules written in the recorded easement document.
This type of easement problem is very common, particularly in rural areas. As larger ranches and estates have been subdivided over the decades, easements were commonly used to grant access to landlocked parcels which did not otherwise have access to a main road.
In more modern times, many more roads have been built, which has improved access to most parcels of land, which means that frequently the old easements are more of a convenience than a necessity.
These old easements are further complicated because in the early 1900s, the documents were not drafted with as many specifics as would be used today, which can lead to ambiguities about the easement such as who can use an easement and for what purposes.
In your case, although the easement granted was 50 feet wide, if the driveway has been 30 feet wide for a long time, or if the neighbor has previously encroached into that 50-foot area without impeding your use of the driveway, it is very possible that this encroachment may be permissible.
An easement is usually a nonexclusive right to use the easement area, which means that although you are all permitted to enter and use the easement, so is your neighbor, as long as the neighbor doesn’t impede your use.
Additionally, easements are typically created for a specific purpose. If the purpose of this easement is for driveway access, and a 30-foot wide driveway has been historically adequate, so the neighbor’s encroachment may not actually violate your easement rights.
On the other hand, if you had intentions to extend the driveway width, or if the language granting the easement is expressly clear and prohibits the neighbor’s entry into the easement, their intended encroachment may not be permitted.
Amicable resolution can frequently be achieved in easement disputes if the parties are willing to work together and communicate.
Sometimes, that may mean that one party will agree to pay money to the other party to change the easement, but often the actual dollar-value of the desired changes are nominal.
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