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Neighbor wants to put a driveway access through a Utility Easement on our property, what are our rights,can we deny access?

Otter Rock, OR |

Neighbor wants to drive through our property to reach the rear of his property via means of a Utility Access (Water), which allows him to drive through our drive way & parking area to our home. He states that he would be removing soil and vegatation (to inclued) plants and food sources we use, with gravel being the conduit to the access and parking area and temporary shed storage he wants to make in the rear of his property. We don't want to allow him access. What are our rights to protect our property and what about liablity to us if someone were to get injured on this area of the property? We believe we are paying taxes on and that this area is on our deed as belonging to us. We will be checking further at the County Courthouse next week. Thank you for any assistance

Attorney Answers 3


The language of the easement (and perhaps its historic uses) will inform whether you can stop this type of use. Likely a utility easement cannot simply be turned into an access easement without your permission. You should make clear that you don't support or permit this use. If you can't work it out, you'll need an attorney. Don't simply ignore the issue or let your neighbor get his way. You're right to be concerned about your liability and property rights.

Licensed in Oregon. Advice provided is general legal information relevant to the facts provided. It is not intended as legal advice applicable to your specific situation. No attorney/client relationship is created unless and until we have met and entered into a written representation agreement. Contact me at 541-250-0542 to discuss your matter further.

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An attorney, preferably one whose practice is mostly real estate law, should review the existing easement language and advise you on your alternatives. There may be other factors involved, but the recorded easement instrument is the most critical document here and will likely control the issue of whether or not the proposed general driveway access is permitted in addition to it creating a route for utility lines. As a general rule, the wording of most utility easements allow access only for installation, maintenance and repair of improvements related to utilities. A utility easement is not the same as a driveway easement and the courts usually do not expand uses much beyond those stated or implied in the easement as written.

Please keep in mind that this is not intended to create an attorney/client relationship. These are only general comments made without all the critical facts needed to fully form an opinion.

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Easements can be a bit complex. When you say utility easement I start thinking that this is an easement given to or reserved by a utility company - like the electric company, or the city for sewer and water. An adjacent private landowner would not have the right to use this easement for a private purpose. My colleagues are correct that you need to read the prior easement documentation. The county surveyor's office might be able to help you as they would have access to historical documents that would show you not only the present plat map and recorded easements but historical details that preceded. Sometimes the right to cross someone's property can be based on historical rights of access. Sometimes it can be based on necessity such as when someone is landlocked and has no other choice. But your brief description above doesn't give sufficient facts. You will probably need to talk to an attorney to sort this out.

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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