Author Topic: Question Regarding Easement and Interpretation of County Code  (Read 604 times)

DMAC

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Question Regarding Easement and Interpretation of County Code
« on: September 25, 2018, 02:25:22 PM »
Hi. I have somewhat of an interesting situation developing around a property I own. I'm waiting to hear back from an attorney with their opinion on it but was curious to see if anyone else had experience or thoughts on the matter.  The situation is concerning an easement that is on my property. The easement is not recorded with the county and only shows up on the plat map and is labeled as a "driveway/utility" easement, there is not other descriptions or explanations and the title company could not find any kind of easement agreement. The easement is obviously for the lot directly behind mine and is currently the only way to access that lot.

The lot owner recently applied for a transient rental (vacation rental) permit from the county. This would allow him to do nightly rentals for up to 30 people per night. This concerns me because I'd prefer not to have the traffic associated with that traversing my property on a daily basis and this easement also serves as the main driveway to my cabin. In the county development code there is an ordinance that states "1.38.020 Access Requirements. Transient rentals must be accessed by a public, or private roadway." In my opinion that lot is not "accessed" by a public or private roadway. The lot may have "access to" a public or private roadway but is only "accessed" via the easement on my property. I think the wording in the ordinance is very purposeful and deliberate. The lot owner contends the easement satisfies the ordinance.  If that were the case, I do not see the point of having the ordinance because if an easement can qualify as access I can't think of any lot that wouldn't be accessed by a public or private road. I believe the ordinance was created specifically for situations like this one so that property owners with easements on their lots wouldn't get taken advantage of.

I've let the county know of my thoughts regarding this ordinance and the commissioner making the decision said he'd take it under advisement and let me know the final determination in about a week. I'm worried that the commissioner will either ignore the ordinance or misinterpret it. The lot owner applying for the permit specifically built this cabin to be a vacation rental and worked extensively with the county to get the building permits so I think he may be putting pressure on them to approve the permit.

Anyways, just curious to what everyone's thoughts are on this. It's not a huge deal if he gets the permit, I won't lose any sleep over it, but would like to stop it if I can.

erutio

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #1 on: September 25, 2018, 04:20:44 PM »
Could you draw a rough picture of what you mean by easement and the access issues?

WranglerBowman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #2 on: September 25, 2018, 04:53:54 PM »
My guess is that somewhere in a deed, possibly far back, there is a reference to an access road or old road on the property.  If the lot is a newer subdivision or it was a vacant lot that he got permits to build on the County typically does a decent job making sure someone has the right build and access that lot/parcel.  If there's a land locked parcel in my County in Maryland the County will actually force an adjacent landowner to provide access to the land locked parcel through an easement.  I'm actually getting ready to potentially deal with nearly this exact issue because I'm under contract on 6 acres that is land locked, but has been accessed for over a hundred years by an existing gravel road that runs through the neighbors property...

tralfamadorian

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #3 on: September 25, 2018, 05:27:19 PM »
I'm sorry you're dealing with this. It's not what you want to hear but in my area easements specifically give the landlocked parcel owner(s) the right to build, maintain and use a private road. Ie: the creation of the private road is their main purpose. The easement is the right; the private road is the physical manifestation to which they access their property through another's.

Cadman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #4 on: September 25, 2018, 05:39:14 PM »
Having bought, and now living on land that had an easement, I feel your pain. My understanding, however, is that an easement agreement must be renewed if the property changes hands; both parties must agree and sign. When you bought, was such a thing discussed with your land-locked neighbor?

If a document doesn't exist, then this could be a good opportunity to put something in place. Besides maintenance, contract renewal, and guest limitations, this is the place to define the amount of liability insurance each party must carry...I'd hate to see you in hot water if some renter injured themselves on your property. And if your property becomes a mudhole and erosion sets in with lots of traffic, it may be on you to maintain it for the other party unless otherwise agreed to.

 


maizeman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #5 on: September 25, 2018, 05:44:59 PM »
I'm afraid my first interpretation is the same as tralfamadorian's.

A private roadway on an easement is indeed a private roadway. My guess is that the ordinance applies in cases where there isn't any way to drive a vehicle to the building being rented out (either a truly landlocked parcel, or a legal easement exists but no one has actually built a road on it yet).

DMAC

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #6 on: September 26, 2018, 10:29:26 AM »
Thanks for your responses. I guess I never considered the easement itself to be a private roadway. To me a private road is a named road recognized by the city/county but is maintained by a private organization like an HOA, not the city. I don't think the city or county would recognize my driveway as a roadway.  I think the ordinance is referring to the term private roadway in that sense, otherwise what would the purpose of the ordinance be? No one would be applying for a transient rental permit if the property couldn't be accessed at all. I guess that is my main concern with this ordinance, it can be subjectively interpreted.

It's clear to me that I need to get something recorded with city about this easement. There is no documentation at all about it other than the plat map with a small dotted line labeled "driveway/utility easement".

maizeman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #7 on: September 26, 2018, 10:32:35 AM »
I think the ordinance is referring to the term private roadway in that sense, otherwise what would the purpose of the ordinance be? No one would be applying for a transient rental permit if the property couldn't be accessed at all.

Perhaps you have a most optimistic view of human stupidity/silliness than I do, but I could certainly imagine someone trying to rent out a property that couldn't be accessed at all, the renter suing, and just such a law/ordinance being passed to prevent it happening in the future.

In any case, best of luck and please do let me know what you learn in the end.

DMAC

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #8 on: September 26, 2018, 12:04:34 PM »
I think the ordinance is referring to the term private roadway in that sense, otherwise what would the purpose of the ordinance be? No one would be applying for a transient rental permit if the property couldn't be accessed at all.

Perhaps you have a most optimistic view of human stupidity/silliness than I do, but I could certainly imagine someone trying to rent out a property that couldn't be accessed at all, the renter suing, and just such a law/ordinance being passed to prevent it happening in the future.

In any case, best of luck and please do let me know what you learn in the end.

Haha! You may be right...

ncornilsen

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #9 on: September 26, 2018, 01:39:25 PM »
Perhaps you should discuss with the county that the added wear and tear from all of those people will be disproportionate to whatever use you make of that road, and that landowner should be required to maintain the road, or should pave it or whatnot.

Cadman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #10 on: September 26, 2018, 01:47:52 PM »
This could all well be a moot point if the city/county can't produce documentation about the easement (limitations of use, expiration, maintenance, dimensions) and nothing exists in writing between you and the land-locked owner. 

Tread carefully, but this could be an advantageous position for you to define those restrictions and make them official.

DMAC

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #11 on: September 26, 2018, 02:50:23 PM »
This could all well be a moot point if the city/county can't produce documentation about the easement (limitations of use, expiration, maintenance, dimensions) and nothing exists in writing between you and the land-locked owner. 

Tread carefully, but this could be an advantageous position for you to define those restrictions and make them official.

I've had those same thoughts as well. With no easement agreement and nothing that specifies what the easement on the plat map is for, I could very well argue the lot owner has no easement rights and make him prove that he does.  I'm not sure if going ahead and getting an official easement agreement made will be beneficial to me or not, on the one hand I could specify exactly what the easement is for and how it can be used, but by doing so I could be legitimizing an easement that doesn't even really exist.




BudgetSlasher

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #12 on: September 26, 2018, 10:45:46 PM »
If there is an easement, which at the least is arguable, the wording of the easement or "what the parties were thinking when they made it" would be key.

The scope of an easement that was created to allow a access to a single family home could be exceeded by commercial traffic to a 30 person a night hotel/motel. But, the easement could also be for all legal uses of the property.


Cadman

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #13 on: September 27, 2018, 01:47:10 PM »
And if an easement agreement must be defined, do yourself a favor and make sure there is a renewal clause included with the land-locked owner. You'll find popular examples on the net.

Situations can change over time, and without that clause, restrictions set today will basically be 'in stone' until one of you sells the property.

BudgetSlasher

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Re: Question Regarding Easement and Interpretation of County Code
« Reply #14 on: September 27, 2018, 02:18:37 PM »
Also, you might wish to consider looping in your title company. If this becomes a legal fight over whether there is an easement and if so what is covered by it, the title company is going to be the one either defending it or paying you for the lost value of your property. So, they might have some insights or some steps that they want you to take now.

The last thing you want is to get to that stage and the title company find out that you have done something to make it more difficult for them to defend. Or worse that by allowing the neighbor to act as if there is an easement, they have gained a prescriptive easement (essentially the easement version of adverse possession) and since it happened after you bought the property your title insurance won't cover it.