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Servient Estate Questions

A servient estate is a term used in reference to easements. A servient estate is real property that has a right of way or easement for the convenience of another to access adjoining property or access to utility lines. Below are some commonly asked questions about servient estates.

Can the easement maintenance contribution of a servient estate owner be reduced if the dominant estate owner opts to use the previously non-commercial easement for commercial purposes?

Once an easements purpose has been established, the use of the easement cannot be changed or altered. If the Easement in question was designed for non- commercial use, the easement cannot be used for commercial use. If the dominant estate owner is accessing the Easement with commercial vehicles multiple times a day, you could file suit against them and have the activity stopped.

If you have a written easement on hand, you will be able to show that the intended use of the easement was not for commercial use and the dominant estate owner is violating the easements use. In the event that the easement isn't written, you will have to prove that the easement has always been for non commercial use and the use of commercial use has just started recently. The court will probably rule that the easement remain with its original intent. However, if the dominant owner needs to utilize the easement, they would have to compensate the servient owner for the usage.

Can my neighbor lease or rent her right of way over my property to a commercial farmer?

Generally rights cannot be assigned to a third party when regarding an easement without the servient owner's approval. You need to read the easement and see how it is worded. It is very unlikely that the neighbor was within their rights to authorize a third party to use the easement. The easement is for personal use, not commercial

I live in an area that has a utility easement at the front of our properties for a future paved road, power/phone/cable and irrigation. The irrigation pipe that services my property runs through that easement. The neighbor has chosen to fence in the easement at his property and has horses that graze there. The irrigation pipe has broken on his property, likely from the weight of the horses. Who is responsible for the repair of the irrigation pipe?

The responsibility will depend on several factors. First, the easement should state who would be responsible for repairs. Without the easement stating who is responsible, the dominant owner (you) is usually expected to make necessary repairs to the easement. However, if you can prove the damage occurred by the negligence of the servient owner, the servient owner would be responsible for the repairs. If you cannot prove the damage was made or caused by the servient owner, it will be up to you to make the repairs.

We have a cottage on a small private lake in MI. We have owned this property for 18 years. There is an easement road to our property which we have used these past years. The owner of the land, where the easement road is, has decided to put his property up for sale and said he was going to put up a fence along "his road". He has gone and done this without any thought for our property. Now we have no way to get into our property without building our own entrance. Is this legal?

The servient owner cannot block an easement used by the dominant estate. Even without the presence of a written easement on the property deed. Under MI law, if you have accessed your property by way of the easement, you have what is called a prescriptive easement and the easement cannot be shut off. You need to contact the neighbor my letter stating that you are entitled to easement rights and he cannot block your access to your property. If the neighbor continues to block the access, you can file suit against him for any damages.

I am the servient estate in an ingress/egress easement situation. I have a 1 acre parcel with house. The parcel behind (north) has 1 acre with house and rental trailer, (former owners of our land) with a 30' X 175' ingress/egress on the eastern side of my land. The people keep blocking the drive with irrigation pipe, saying they own the land on the easement. What can I do?

Your neighbor doesn't own the easement. The easement is a means to access his property and nothing more. This isn't a criminal situation, but it is a civil issue. You need to file suit against the neighbor and ask the court for an injunction to keep the neighbor from blocking the easement and to prohibit the neighbor from using the easement for anything other than an access road. You could also ask for damages as a result of past violations made by the neighbor pertaining to the easement. Once an injunction is in place, if the neighbor violates the injunction, he could face criminal and civil actions because he will now be in contempt of court.

If you have questions about a servient estate and need answers, you should ask an Expert in Real Estate Law for legal insights.

Ask a Real Estate Lawyer

Tina
Tina, Lawyer
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4460311
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