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legalgems, Arbitrator
Category: Real Estate Law
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Experience:  Just Answer consultant at Self employed
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We have a cross access easement on our little strip of land

Customer Question

We have a cross access easement on our little strip of land on the side of our patio home that directly faces our neighbor's patio. Do they have the right to build a water feature in the easement within a foot of our home?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  legalgems replied 1 year ago.

Thank you for your patience as I reviewed this;

So the servient tenant (the property owner that has the land which the easement is on) is allowed to repair and improve the easement so long as it does not interfere with the dominant tenant's use and enjoyment of that easement.

Case law suggests that so long as there is not language to the contrary (in the deed, contract etc creating the easement), the servient tenant retains all rights that are not inconsistent with the enjoyment of the easement. Williams v. Abernathy 402 SE 2d 438 (NC Ct App 1991).

The courts have also determined the burden is on the dominant tenant to prove that such use is in fact inconsistent with the dominant tenant's rights. City of Statesville v. Bowles 169 SE 2d 467 (NC Ct App 1969)

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 1 year ago.
What does that mean, exactly....
Expert:  legalgems replied 1 year ago.

It means that the landowner can make use of the easement so long as it does not interfere with the other person (the person entitled to use the easement) use of the easement.

So for example, if the purpose of the easement is an access issue, they cannot obstruct a fence as that would frustrate the person for whom the easement was granted from using that easement.

Customer: replied 1 year ago.
We are unhappy that they built a water feature a foot away from our foundation on our land. Can you just answer whether they can do this??
Customer: replied 1 year ago.
Does the easement allow them to do this?
Customer: replied 1 year ago.
They have planted shrubbery on it that blocks our ability to wash our window
Expert:  legalgems replied 1 year ago.

It is permitted unless the easement language contained in the deed or contract does not allow it. If the water feature affects the foundation of one's property, that is a separate issue and can result in liability for any resulting property damage and a court order to remove the water feature- if it is causing erosion, for example.

If the easement was granted for this purpose and now it cannot be served, then that would be a violation. An easement is usually granted for a particular reason/use- so if it violates that purpose then it would be a violation and the court could order the improvement to be removed, because only improvements that do not affect one's use of the easement is permitted.

Customer: replied 1 year ago.
On the plat it is called a shared driveway easement. The HOA architecture review committee approved the water feature in their courtyard on our land without our consent
Expert:  legalgems replied 1 year ago.

So the purpose would be a driveway so presumably for driving/parking vehicles. If the sculpture is in the way so that the intent of the easement cannot be satisfied it would be a violation.

Customer: replied 1 year ago.
It does not make sense that the easement would be for the driveway that far down the side of the house across from their patio. (The whole area is fenced in.). Where would I find the purpose of the cross easement?
Expert:  legalgems replied 1 year ago.

It would be in the deed or the contract granting the easement;

It is possible the fencing occurred later in time -ie after the easement was granted.

Expert:  legalgems replied 1 year ago.

If it is not clear for which purpose the easement exists, and the parties cannot agree, the court will have to make a determination as to whether the improvement is of such a nature that it interferes with one's use and enjoyment of that easement; they will often look at any documents pertaining to the easement, past conduct of the parties, etc, to determine the intent of the easement.

Expert:  legalgems replied 1 year ago.

Checking in on the above.

Hopefully the above information was useful and this issue is resolved with minimal hassle.

Thank you for using JA>

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