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Ely
Ely, Counselor at Law
Category: Real Estate Law
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Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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In nebraska if an easement is not filed with the register of

Resolved Question:

In nebraska if an easement is not filed with the register of deeds is it valid?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

The answer is yes. There is no requirement for the easement to be filed with the Registrar of Deeds in order for it to be valid. The Registrar of Deeds simply records the easement so that it is public record and may be seen by others, and also so that there is a formal copy on the books. But there is no statute that invalidates the easement provided that it is (1) in writing and (2) signed by the servient estate holder (the property granting the easement).

Now, if there has been some non-mention of the easement during a sale, etc, then that can be cause for a suit. However, the easement itself remains valid, arguably, if a copy may be found.

I hope this helps and clarifies. If this is not what you had wanted to hear, I am sorry. Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 88305
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and 9 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.


So to get this easement _ it was verbally misrepresented when the purchase was made- lifted I would need to go to court? At the time of purchase large trees obstructed entrance to the other property. those have been removed and the other property now runs a small business on that property.

Expert:  Ely replied 1 year ago.
V,

Please tell me what exactly happened? How was it verbally misrepresented? Are you a buyer of the property? What is the background on the matter?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

I am the buyer of the property with the easement on it.


 


When I purchased this property, a farmer rented the land on the west and south. On the west side there were large metal buildings and grain bins. I was told by the seller that the easement was needed so the renter could get his farm equipment in and out as the north side was lined with large trees. This farmer has since purchased the property with the metal buildings on it. He cut down the tress lining the property so he can get his equipment in and out. He does that when he the land he is working is in a northerly direction. He also started selling seed corn so I now have everyone coming through my driveway. He used to clear the driveway making sure I could get out until last year when he only cleared a path for himself and piled the snow up so I couldn't get out without shoveling all of that snow away.


If he uses my driveway there is no stop sign so he can go faster even though it kicks up a lot of dust for me.

Expert:  Ely replied 1 year ago.
V,

I see, thank you. On this website, I do not always get to give good news, and this is one of these times.

An easement cannot be cancelled just because you did not know of it. You walked into a matter wherein you "stepped into the shoes" of the prior owner when it comes to this easement. So the other side - the farmer - does not lose the easement simply because the seller did not mention it to you.

Now, I am going to assume that the easement allows him to do all that he is doing. If he is abusing the easement and/or is using it beyond its intended scope - let me know, as the answer DOES change, then.

However, you would have a case against the seller for fraud here. The elements of fraud are (1) a false representation of material fact, (2) knowledge that the representation was false or made in reckless disregard as to its truthfulness or falsity, (3) an intent to induce another to act, (4) a justifiable reliance on the representation, and (5) injury or damage resulting from such reliance. See, Cummings v. Curtiss, 219 Neb. 106, 361 N.W.2d 508 (1985); Havelock Bank v. Woods, 219 Neb. 57, 361 N.W.2d 197 (1985); Flakus v. Schug, 213 Neb. 491, 329 N.W.2d 859 (1983).

Now again, if the farmer is misusing/overusing the easement to your detriment, let me know, and we can perhaps discuss this. But unless/until he does this, the easement stays in effect and one's path to relief is via pursuing the prior owner/seller for fraud.

I am sorry. Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.


I believe he is misusing it. At first it was just him using it with occasional hired help. He has since hired 2 full time workers. Increasing the use of the driveway. In addition he has his customers, semi trucks ( when he sells hay or takes large deliveries), friends who come to visit, gravel trucks when he orders for his property all using. I have almost been hit twice backing out of my garage because they all drive through there pretty fast. They also don't always stay on the driveway have created ruts and a low places with the heavy equipment. There is traffic in and out early mornings and throughout the day until sometimes as late as midnight. He does no maintenance on it and if he pushes snow my gravel ends up on his property or my grass. They also cut through my grass to "shortcut" to where he parks large equipment in the summer. I believe the excess use has created major problems. I have asked that they go slow as the dust gets terrible but he refuses.

Expert:  Ely replied 1 year ago.
V,

Okay - have you seen the actual easement instrument (i.e. the document)? What does it allow him to do, exactly</b?

Or, you have not seen it?
Customer: replied 1 year ago.


The only mention is when the previous owner purchased from his relative. It states '" Easement retained for Grantors for a 20" ingress and egress across the driveway located to the south of the home". This is on the previous owners warranty deed and no where else. I went to the courthouse this morning and this was all they had.

Expert:  Ely replied 1 year ago.
V,

Okay, thank you. I have to dig into a little case law so apologies in advance for a momentary wait while I do so... I hate to give you a generic answer so please give me a few minutes for some research here to back my answer; if that is okay...
Customer: replied 1 year ago.


The ingress number should be 20 feet not inches. Will also mention one of his hired hands also cut thru my backyard when he went out the north side of their drive and turned and his boss wanted to him to go straight .

Expert:  Ely replied 1 year ago.
Verna,

My apologies for the wait. As I had stated:

"I have to dig into a little case law so apologies in advance for a momentary wait while I do so... I hate to give you a generic answer so please give me a few minutes for some research here to back my answer; if that is okay..."

This is a bit subjective. First, a few terms:

SERVIENT ESTATE is the estate that gives the easement. That is you.

DOMINANT ESTATE is the estate that holds the easement. That is the neighbor.

A dominant estate is not supposed to abuse/overuse the easement. But what is abuse/overuse is on a case by case basis. There is no statutory law that states WHEN the easement is being abused/overused. In addition, Nebraska has very underdeveloped case law when it comes to this as well (this was the wait, while I was attempting to find something useful to cite). As such, we fall back on common law, which states:

If the dominant estate abuses the easement by overstepping the original use intended, trespassing unto the rest of the land, damaging the easement on the land, or not allowing the servient estate to enjoy their land, then the servient estate (that is you) may file in Court to have the dominant estate ordered to scale down their activities to what the easement originally had intended, and, pay for any damage/court costs.

However, you fall back unto the point of needing to go to court to have this done, and an attorney would be required.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 1 year ago.

ok I will consult a Attorney in Ne to see if we can make some case law.

Expert:  Ely replied 1 year ago.
V,

No problem. I wish you the best of luck in this and all other endeavors. Come back anytime.

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Ely
Ely
Real Estate Lawyer
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Qualified attorney in private practice including business, family, criminal, and real estate issues.