easement is 60 ft wide... exisitng road is within this easement.. about 20 ft side... prop owner is building fence right up against the road within the easement... can with enforce that he must build the fence outside the easement?
Lawsuit / Dispute Attorney
First, check out the wording of the easement. The general rule of law is that the porerty owner cannot do anything that interfers with the use of the easement. A fence within the easement but off the road is probably debatable. If you object to it, you should do so in wiritng and if you anticipate that the fence will interfere with the use of the easement, you should state that and perhaps explain. Ultimately you can seek an injunction but it would be best sought by all the users of the easement.
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Real Estate Attorney
I generally agree with Mr. Koler's answer, but I would emphasize that a property owner generally has the right to use his/her own property in any manner which doesn't interfere with the use of the easement, and this would include the right to build a fence. If the full 60 feet is needed at a future date, the fence would have to be removed.
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Land Use / Zoning Attorney
I generally agree with Messrs. Koler and West. However, because these types of questions appear to arise often, it may be beneficial to take a step back and explain the nature of the specific property interests involved. When the nature of these property interests are fully understood, the legal doctrines related to them make a whole lot more sense.
In particular, an “easement” is a limited right to use the property of another for a specific purpose. The owner of the underlying property that is burdened by the easement retains the “fee” interest (i.e., all other property interests not granted to the easement holder). Although easements can be created in a variety of ways, they are most frequently created by an express act, typically a deed.
Naturally, when a dispute arises regarding the respective rights of the easement holder versus the fee owner, the starting point is the language of the deed/easement itself. Thus, if the 60-foot easement expressly prohibits the underlying fee owner from installing any fence whatsoever on the easement, the answer is obvious. No fence would be allowed.
If the question cannot be resolved by looking at the language of the easement, then a court will typically look to the general purpose of the easement, and utilize the default rule that the fee owner is entitled to make non-interfering, beneficial use of the property, including the easement area. The flip side of this rule is that the underlying fee owner cannot take any actions that are inconsistent with the use of the easement area (e.g., block the road). These basic rules make sense because, after all, the easement holder has a mere limited right to use the property for a specific purpose, and the fee owner retained all other rights (not to mention the typical obligation to pay the property taxes).
In this case, the question is whether the installation of a fence within the 60-foot easement, but outside of the existing 20-foot road, interferes with the use of the easement for access and utilities. Although it’s a debatable question, building the fence “right up against the road” may constitute interference with normal use or because of special site conditions, safety concerns, or other unique circumstances. Moreover, the issue of interference may be informed by the parties’ historical use of the easement. If a non-interfering fence is installed in the easement by the fee holder, it could potentially be moved at a future date if the need to widen/expand the road arises.
This answer is provided for informational purposes only and should not be relied upon or construed as legal advice or legal opinion. The answer is based upon limited facts and general principles of law, both of which are subject to change and, therefore, may materially affect any answer given. You should contact an attorney to obtain advice with respect to your particular issue or problem. This answer does not create an attorney-client relationship, nor does it create any kind of legal relationship, duty, or privilege. This attorney is licensed only in the State of Washington.
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