The Property Line we share with our neighbor includes a 5' "use and enjoy" easement wherein we are allowed to 'use and enjoy' 5' of their property that straddles a crooked fence line in our side yard. My problem is I can't get them to engage in conversation about planning for our common use. Currently it is an eyesore and the wood fence is rotting and in disrepair. As they own the property and we only the easement, do they have rights to plan and execute what they wish and we only have rights to use what is there or for example, may we plant a vegetable garden? And, as has happened, may they plant trees that interfere with our access to the easement?
State/Country relating to question: Virginia
I have tried speaking to them on no fewer than 5 occasions about jointly and prospectively planning for the rehabilitation of the fence, clarity on the 'crooked' part of the fence, and potential uses. Instead, the only engagement I have gotten from them was when she was having a tree delivered and was directing the installer to put it squarely in our easement area.
-Could you explain your situation a little more?Is this Easement in writing and a matter of public record?
If so, does it just say "use and enjoy" with no other specific terms?
Hi Dave -
Dear JACUSTOMER - In the case of "ingress and egress" easements it is clear that it means "access" however "use and enjoy" is ambiguous and can mean anything. If your neighbor makes it impossible for you to "use and enjoy" the strip of land then you can file a suit for a restraining order for the neighbor to cease and desist from whatever activity is causing you the loss of your right to "use and enjoy" the land in question. Replacing the fence would be up to the neighbor since it is a permanent fixture on his property and is owned by him. If the fence was there when the easement was granted then you could not argue that it is causing a loss of enjoyment of the land but if it was erected while the easement was in existence then you can argue that it impedes your right to enjoy the use of the property.
What I have said up to this point is the legal analysis as I see the situation. In any case such as this you always have to look at the practical and financial aspects involved. In order to enforce your legal rights you would need to take court action. That can be very expensive so you have to look at the "risk and reward" factors in taking such action. Due to the fact that the words "use and enjoy" are ambiguous there is no guarantee that you would win in court if you were trying to block the planting of a tree. Whether you can use the land for some permanent purpose such as a garden is also questionable. I can argue that both ways and since I'm not the judge I can't predict what a specific judge would rule in that case. My guess is that the court would rule that "use and enjoy" does not mean permanent usage that would then deny the use to the other party. If you can show that a tree causes you to be unable to use the land then that would be an argument to have the court order it be removed. The fence is already a permanent structure and belongs to the neighbor so I see no way you can force the neighbor to repair or replace the fence by using the terms of the easement. Once again, all of this will depend on how much you want to spend to enforce your rights to use the easement if your neighbor simply refuses to discuss the situation. Going to court is the only legal option.
Thanks, Dave. Is the granting of an easement managed by local or state law? Is there a definition of "use and enjoyment" that I could expect to be offered by that granting body? Otherwise, it seems like an empty easement?
Doing legal research is quite complicated and finding a case on point that would compare to this exact situation will be difficult and you would probably require the use of an attorney who has access to all the legal websites for this type of search. "Use and enjoyment" is terminology used in real estate and is based on the purpose that the land would normally be used for. So for example, if there is an ingress or egress easement then the use and enjoyment would be the access. If there was an easement to park a vehicle then the "use and enjoyment" would be a place to park the vehicle. So in your case there is only a 5' section of land so the "use and enjoyment" would be limited to whatever that portion of land can be used for. As I said in my first answer, you have to balance the cost of a court action versus whatever benefits you may be able to gain by having the use of the area.
Relist: Other.The Real Estate lawyer, Tina, whose profile was displayed prior to my payment is not the lawyer who answered....and it isn't apparent from Dave Kennett's profile whether he is a Real Estate lawyer.
Thank you for posting your question to JA/Pearl. Legal questions often take time for research or I may be offline so please be patient, I will reply.Mr. Kennett is a well versed in real estate law and has provided you with an extensive answer that is absolutely correct
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