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I live in Oregon - Can the users of an easement fill in potholes over an easement without the owner's permission?

Medford, OR |

There are six homeowners on dead end lane. The road becomes very bad with pot holes during the winter. Can the users of the easement maintain the road as would be expected. The easement is 14 feet wide between six 1 acre lots. One home owner at the beginning of the easement is encroaching 5 feet into the easement with his bushes and trees and will not allow up to fill in the potholes to to point where people don't want to come down our driveway. Can we maintain the easement by filling in the potholes even though the owner says we cant fill in the potholes without his permission or touch his bushes and trees that encroach and cause scratches. There are two surveys showing the encroachment..

Do I have the right to maintain an easement (trim bushes/trees and fill in the big potholes) to a reasonable degree when the owner refuses to?

Attorney Answers 2

Posted

I agree with my colleague, a lot would depend on the language of the easement as well as history of the use and maintenance of the easement. Typically, without any language or contrary intent, users of an easement should be able to provide reasonable repairs to maintain the use and enjoyment of the easement. I would try to find out the reason the owner is refusing and try to come to a compromise that takes into account the easement users and the owner. Otherwise, you may have some rights but it may take some time and expense to enforce them.

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Joanne Reisman

Joanne Reisman

Posted

Well said.

Asker

Posted

The easement is an asset to my property only if it can be maintained; at the same time, it is an encumberance to the owner of the land we travel across. Can I be held liable for damages to trees for trimming the branches out of the easement or filling in the pot holes so we don't drag bottom? Thank you - will try to beer approach first.

Joanne Reisman

Joanne Reisman

Posted

What I am not clear on is who the primary land owner is that granted the easements in the first place - is it the quarrelsome neighbor or another person? In any case I wouldn't start hacking away foliage without first sorting this out. Clearly if all neighbors agree including the primary land owner then you don't have an issue. So try your beers with this neighbor and see if you can at least get him on board. Go with some diplomatic friends and keep things calm - if he is the sort that drinks and blows up you need to exit and not engage him and whatever happens don't let things escalate to any type of violence. Bringing some diplomatic friends might help keep things calm.

Posted

I can't speak to the legal technicalities of the easement - that will require you going to a lawyer to read and review the exact language. But I can speak to the practicality. I don't see why the homeowner would completely object to you filling in the potholes especially with your own labor and expense. He probably is concerned with your ability to do it without harming his bushes or his property. Maybe a friendly discussion where you and the owner decide how this can be done without causing him problems would solve the issue. I might show up at his house with a couple of cold beers and say "can we talk" or a cup of coffee or some peace offering - maybe even fresh baked brownies. My guess is that there is some other prior issue that is causing you a problem with getting cooperation. Try winning him over first. http://www.portlandlegalservices.com

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Joanne Reisman

Joanne Reisman

Posted

PS some people react badly when they are told what the have to do - rather then being asked in a nice respectful way and being treated like their rights and opinions are important to you.

Thomas O. Moens

Thomas O. Moens

Posted

Great answer. Thank you for suggesting a peacemaker approach. We certainly need more of this in our profession.

Asker

Posted

The guy is an alcoholic and a hot head and will not budge on his stance of leaving the potholes and bushes - his bushes and trees encroach 5 feet - and he flips out if we do anything to the driveway - the easement is a lawful easement on our deeds - don't we have the right to maintain the easement by providing reasonable maintenance on the driveway?

Joanne Reisman

Joanne Reisman

Posted

Well I guess then I would show up with a bottle of something he likes to drink and try to discuss it. Maybe bring a friend or two and keep it calm.

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