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Encroachments and easements
Old 08-16-2016, 06:14 PM   #1
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Encroachments and easements

Has anyone any experience with property easements? What kind of disadvantage, if any, would I find myself in if I grant a neighbor an easement of a few feet to allow a small retaining wall to be built on my side so they can build a patio. I don't use that little piece of land now, but it's unclear to me what recourse I have if I might need it in the future. Also unclear on what impact such an easement might have if I try to sell in the future. Any insight / experience is appreciated.
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Old 08-16-2016, 06:24 PM   #2
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The real issue that I would see is the latter ... that when you sell the house you will have an encroachment on the property.

I would consult a real estate lawyer in your state on the disadvantages and how (or if ) to document the easement.

I would expect laws to be different by state.
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Old 08-16-2016, 06:25 PM   #3
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Might want to just sell it to him and be done with it altogether?
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Old 08-16-2016, 06:31 PM   #4
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I agree sell it to him. Easements tie the properties together forever. Might not be a big deal but what if neighbors ever change?
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Old 08-16-2016, 06:57 PM   #5
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Don't wish to sell, it's a narrow lot.
I wonder if there is such a thing as granting permission to use in a a way that isn't permanent and easily withdrawn. Lawyer time.
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Old 08-16-2016, 07:08 PM   #6
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Asking for trouble. Unless you are sure you can give it to them for ever, including if they move and new neighbors move in, I would not.
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Old 08-16-2016, 07:09 PM   #7
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I used to create easements in my former life.

The most important thing - will granting the easement affect your enjoyment of your property? Could it affect the enjoyment of future buyers of your property?

Why do you think you may need the easement area free and clear of the easement in the future?

Are there any easements in the subject area already? Gas, electric, etc.

Will the neighbor's entire patio be on his property? Only the retaining wall is on your property?

You don't have to grant a permanent easement. You can grant an easement for any time frame you choose and specify additional terms that you desire.

Put the easement on a standard easement grant form and have it recorded at the county recorder of deeds (or whatever the county office is called in your area). You should probably have it prepared by a lawyer.

Make sure that the easement grant contains a legal description that defines the specific easement area to be granted. Don't grant an easement for more area than what is needed for the wall. If you want to get really technical, you could grant an permanent easement for only the wall, and a temporary easement for the entire construction area that he'd needs to build it.

Make sure that there is some kind of hold harmless clause or whatever that removes you from any liability in construction of the wall or any accidents that could happen due to the wall in the future.

Whatever you do, specify that maintenance of the wall is the grantee's (neighbor) responsibility.

Make sure that the neighbor accepts any increase in real estate taxes that you could incur if the wall is deemed as an improvement to your property.

If you are still uncomfortable with an easement, maybe a written agreement would be ok. One with no certain time frame. One that allows the neighbor to build the wall, and requires him to maintain it.

Any easement granted by you runs with the land regardless of ownership(yours or neighbor's) and is per the time frame specified in the easement document.

That's about all I can think of now
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Old 08-16-2016, 07:28 PM   #8
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I used to create easements in my former life.

...

Will the neighbor's entire patio be on his property? Only the retaining wall is on your property?

...

That's about all I can think of now

Thanks Ronstar. Is there a reason why you make the distinction between the retaining wall only vs some small part of the patio being included?
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Old 08-16-2016, 07:33 PM   #9
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Thanks Ronstar. Is there a reason why you make the distinction between the retaining wall only vs some small part of the patio being included?
Not really. But part of the patio on your property would increase probability of accidents that could happen on your side of the line.

Or maybe in the future, grading could be done to eliminate the wall, leaving the patio in place. If the patio was 100% on their side of the line, there would be no need for an easement if a grading alternative to the wall was done.
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Old 08-16-2016, 07:54 PM   #10
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Has anyone any experience with property easements? What kind of disadvantage, if any, would I find myself in if I grant a neighbor an easement of a few feet to allow a small retaining wall to be built on my side so they can build a patio. I don't use that little piece of land now, but it's unclear to me what recourse I have if I might need it in the future. Also unclear on what impact such an easement might have if I try to sell in the future. Any insight / experience is appreciated.
Will the patio be on your side of the line or will just the retaining wall be? Will the neighbor be using your land or just building a retaining wall on it?
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Old 08-17-2016, 05:23 AM   #11
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I allowed a couple of easements on my former river front property, one to allow a neighbor to share the front portion of my driveway for me being able to share a portion of his (which I had inadvertently encroached on when I built my house before his was built). The second was to allow the other property owners to access a small area in the back of my lot on which their path to a common area beach had inadvertently encroached a couple of feet onto my property. The alternative to the later would have been to force them to redirect the path down a couple of feet into wetlands along a pond. In both cases I saw no downside to me and chose a good neighbor approach. No one expressed any concerns when I sold the place. I would look at it from that point of view. Could the guy just as easily build the wall on his side of the line? If not, would it make any material difference in your property to you or potential buyers? I would not proceed on an easement I intended to renege on later - that sounds like buying trouble.
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Old 08-17-2016, 07:56 AM   #12
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last house I bought I had the next door neighbor put a pedestrian right of way/no build easement on his property adjoining the gulch so I would have an unobstructable view of downtown.

In your situation, I'd just replat the lot and sell him the piece of property.
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Old 08-17-2016, 08:07 AM   #13
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....In your situation, I'd just replat the lot and sell him the piece of property.
This would be another way to handle it. And you may not need to replat the lot. Not sure about other states, but Illinois allows conveyances between adjacent properties by deed.
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Old 08-17-2016, 04:03 PM   #14
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Liability issues, that's a good reminder, thanks.

The lot is narrow, so selling it isn't an option I'd consider. It's lawyer time!
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Old 08-17-2016, 04:59 PM   #15
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Or just say no.
Let them redesign their patio so it fits on their property.
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Old 08-17-2016, 05:03 PM   #16
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I would not proceed on an easement I intended to renege on later - that sounds like buying trouble.
I am not even sure that this possible. To my knowledge, easements become part of a deed, and they pass with the property. So if you like your neighbor now, but hate the dope dealer punks he sold his house to, good luck.

Ha
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Old 08-17-2016, 06:58 PM   #17
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Or just say no.
Let them redesign their patio so it fits on their property.
+1
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Old 08-17-2016, 07:05 PM   #18
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Also consider if there are zoning restrictions for building the wall (could it be considered an accessory?) Over the property line...often they will be restricted setbacks. A lawyer is a good idea...

Sent via mobile device. Please excuse any grammatical errors.
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Old 08-17-2016, 09:52 PM   #19
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Or just say no.
Let them redesign their patio so it fits on their property.

I am also in the just say no camp due to you having a small lot...

I know years ago that my BIL was trying to buy a lot in a place that was close to water... expensive lots.... so a good number had been split and small houses built.... I just looked at some lots are 2,000 sq ft... Now they have a limit on the size of property you can build on a lot, and I think the lot now has to be at least 5,000 sq ft. (but, I could not find the info, so this is what I remember BIL saying)....

It was a good think he did not buy...


Also, if I were buying a normal house or lot I would not buy if there were ANY easements to someone other than a utility.... just not worth the potential trouble....
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Old 08-18-2016, 04:14 AM   #20
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If you live in a state where title companies handle closings, (instead of attorneys) call your local office and ask for some free advice (your Realtor may have a name or two). They find many such concerns when handling surveys at closings.

I am a Realtor in IN and often call for ideas on such issues.
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