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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

  1. Best answer

    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.

  2. 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.

    The comments by this author to questions posted on Avvo are designed to foster a general understanding of what might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.

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