Should I give up the easement through my neighbors yard?
September 27, 2010 10:43 AM Subscribe
YANML: I have an easement through my neighbor’s property. I use it regularly and the neighbor and I get along just fine. The other day the neighbor approached me about extinguishing the easement. While he didn’t offer me any money or anything, he was clearly lobbing the ball to me to come up with what I would want to release the easement to him. I’m located in Alameda County, California. More than you need to know after the break.
To reiterate, you are not my lawyer. I have an attorney who is also a real estate broker. But I won’t be meeting with him for a few weeks.
The easement cuts through our neighbor’s yard on the far side of his garage. The property it cuts through isn’t used by him at all it’s just kind of a dead spot between our properties. It’s about 20-25 feet long and wide enough to fit a car through. Basically it’s a mini alley.
There used to be a garage in our backyard and the only way you could access the garage with a car was by way of the easement. But the garage was in dreadful shape and had to be torn down. My wife and I decided not to rebuild the garage. Instead we put in a patio and made the backyard a little bigger (and a lot nicer). But when we designed the layout of the backyard, we designed it so that it would be easy to put in a car port. Even though we removed the garage, we still use the easement with frequency.
The easement is of definite value to us, not just practically, but financially as well. Should we ever choose to sell the house, the option of parking in the back is of great value (as it is now, there is only street parking). And my wife and I haven’t totally ruled out putting in a carport for ourselves.
I’m open to negotiating with neighbor, but I don’t know where to start. How do I go about calculating the value of something like this? Also, I worry that this is the kind of thing that could spoil a good relationship between neighbors. While we are friendly, we are by no means close.
I also wonder if there are legal means by which he could basically seize the easement away from me? If so, I feel kind of cornered to negotiate with him because if I’m going to lose the easement, I’d like something in return.
Like I said up top, I’m going to meet with my lawyer in the next couple of weeks. But right now the wheels in my head are turning, turning, turning. How do I calculate the value of an easement? Is there a way by which my neighbor could just sue and extinguish the easement? Have you ever been in a similar situation? Ideas?
Thanks!
To reiterate, you are not my lawyer. I have an attorney who is also a real estate broker. But I won’t be meeting with him for a few weeks.
The easement cuts through our neighbor’s yard on the far side of his garage. The property it cuts through isn’t used by him at all it’s just kind of a dead spot between our properties. It’s about 20-25 feet long and wide enough to fit a car through. Basically it’s a mini alley.
There used to be a garage in our backyard and the only way you could access the garage with a car was by way of the easement. But the garage was in dreadful shape and had to be torn down. My wife and I decided not to rebuild the garage. Instead we put in a patio and made the backyard a little bigger (and a lot nicer). But when we designed the layout of the backyard, we designed it so that it would be easy to put in a car port. Even though we removed the garage, we still use the easement with frequency.
The easement is of definite value to us, not just practically, but financially as well. Should we ever choose to sell the house, the option of parking in the back is of great value (as it is now, there is only street parking). And my wife and I haven’t totally ruled out putting in a carport for ourselves.
I’m open to negotiating with neighbor, but I don’t know where to start. How do I go about calculating the value of something like this? Also, I worry that this is the kind of thing that could spoil a good relationship between neighbors. While we are friendly, we are by no means close.
I also wonder if there are legal means by which he could basically seize the easement away from me? If so, I feel kind of cornered to negotiate with him because if I’m going to lose the easement, I’d like something in return.
Like I said up top, I’m going to meet with my lawyer in the next couple of weeks. But right now the wheels in my head are turning, turning, turning. How do I calculate the value of an easement? Is there a way by which my neighbor could just sue and extinguish the easement? Have you ever been in a similar situation? Ideas?
Thanks!
I don't know if this will be helpful to you or not, but I had something similar a few years ago. A rental property we owned had an easement through the driveway of the next house. That house sat on a corner, and we could get to our garage from the street on their side. The rental house had it's own narrow driveway right next to it--but was so narrow it was almost impossible to use. The driveway with the easement was wide, and easy to navigate, and we had used it for years.
Well, the house with the easement was sold. The new owners sent us a letter one day and said it was done, we couldn't use their driveway any more. After talking to our lawyer, we found we were SOL, because there was another way to access our garage. And that was it. But the key to this was that we did have one way to get in.
posted by chocolatetiara at 11:04 AM on September 27, 2010
Well, the house with the easement was sold. The new owners sent us a letter one day and said it was done, we couldn't use their driveway any more. After talking to our lawyer, we found we were SOL, because there was another way to access our garage. And that was it. But the key to this was that we did have one way to get in.
posted by chocolatetiara at 11:04 AM on September 27, 2010
"More than you need to know after the break." Unfortunately, no. There are many factors that can affect the validity and value of an easement that you have not addressed. For example, does the easement attach to a specific use? "An easement for ingress and egress" is different from "An easement for access to the existing garage..." Was the easement acquired by you or a predecessor in your property? Is it an exclusive or non-exclusive easement? Do other properties on your street have similar easements or is this a unique situation? Can you identify other properties that are like yours except lacking the easement benefit and clearly establish a difference in market value between yours and the other ones?
Addressing these and other issues with an attorney who is also a real estate broker is probably the only way you are going to get reasonable advice on your particular situation.
posted by Old Geezer at 11:05 AM on September 27, 2010 [3 favorites]
Addressing these and other issues with an attorney who is also a real estate broker is probably the only way you are going to get reasonable advice on your particular situation.
posted by Old Geezer at 11:05 AM on September 27, 2010 [3 favorites]
Drawing back on my memories from law school and a quick Google search, it is very difficult for an easement to be extinguished without your consent. The cases where it can happen involve when the fundamental nature of the property is changed or some other factor makes it impossible or nonsensical to maintain. None of these situations would obtain here, as you've kept using it and it's the same residential neighborhood it's always been.
As far as figuring out the value, your lawyer/real estate broker will be a good help because he should be able to make some calculations about local home values with and without private parking. Of course, the other aspect of this is the value to your neighbor and what he intends to do once he's extinguished the easement. For instance, he might have a plan to build in the space, in which case it could effect your property value in some way.
Long story short: Tell your neighbor you're interested in the idea and want to know more about his plans and what he'd like to pay. And talk to your lawyer about the value and potential ramifications.
posted by gabrielsamoza at 11:10 AM on September 27, 2010
As far as figuring out the value, your lawyer/real estate broker will be a good help because he should be able to make some calculations about local home values with and without private parking. Of course, the other aspect of this is the value to your neighbor and what he intends to do once he's extinguished the easement. For instance, he might have a plan to build in the space, in which case it could effect your property value in some way.
Long story short: Tell your neighbor you're interested in the idea and want to know more about his plans and what he'd like to pay. And talk to your lawyer about the value and potential ramifications.
posted by gabrielsamoza at 11:10 AM on September 27, 2010
Should have previewed. Old Geezer makes some good points about knowing the exact terms of the easement.
posted by gabrielsamoza at 11:12 AM on September 27, 2010
posted by gabrielsamoza at 11:12 AM on September 27, 2010
My parents tried to extinguish an easement a few years back and were unable to do so. And there was an alley with access for all parties. In your shoes, I'd say "I need to talk to my attorney, let's talk about this over lunch on $DayAfterITalkToAttorney."
posted by SMPA at 11:19 AM on September 27, 2010
posted by SMPA at 11:19 AM on September 27, 2010
Response by poster: For example, does the easement attach to a specific use? "An easement for ingress and egress" is different from "An easement for access to the existing garage..."
-It is for both ingress and egress. As recorded with the county there is no reference to a garage or anything specifing any type of use other than for ingress and egress.
Was the easement acquired by you or a predecessor in your property?
-It came with the property when I bought it. The previous owner used the easement as well.
Is it an exclusive or non-exclusive easement?
-Exclusive.
Do other properties on your street have similar easements or is this a unique situation?
-Unique
posted by phelixshu at 11:25 AM on September 27, 2010
-It is for both ingress and egress. As recorded with the county there is no reference to a garage or anything specifing any type of use other than for ingress and egress.
Was the easement acquired by you or a predecessor in your property?
-It came with the property when I bought it. The previous owner used the easement as well.
Is it an exclusive or non-exclusive easement?
-Exclusive.
Do other properties on your street have similar easements or is this a unique situation?
-Unique
posted by phelixshu at 11:25 AM on September 27, 2010
Don't do it. I'm betting your neighbor has decided to sell his property and hopes that eliminating your easement will make it more attractive, especially if your patio is more pleasing to look at than whatever garage you or a future owner might erect there some day. Accommodating him by selling off the easement will make your home more difficult/less rewarding to sell some day, as you note by observing that should we ever choose to sell the house, the option of parking in the back is of great value.
If you need an excuse to preserve neighborly relations, you can state that reducing the value of your house by the amount of the easement's worth will put you out of compliance with the lender's terms for your mortgage and/or the mortgage insurance's required loan:value ratio.
posted by carmicha at 11:37 AM on September 27, 2010 [4 favorites]
If you need an excuse to preserve neighborly relations, you can state that reducing the value of your house by the amount of the easement's worth will put you out of compliance with the lender's terms for your mortgage and/or the mortgage insurance's required loan:value ratio.
posted by carmicha at 11:37 AM on September 27, 2010 [4 favorites]
As an alternative, perhaps you could buy the disputed strip of his land if doing so wouldn't make his lot non-conforming.
posted by carmicha at 11:40 AM on September 27, 2010
posted by carmicha at 11:40 AM on September 27, 2010
I'd guess your neighbor is thinking about selling and wants to extinguish the easement to make it easier to sell. Realistically, it may not affect the value of his property all that much, but it sounds like it could have a serious effect on the value of yours. I'd lean towards not negotiating at all, but speak to a lawyer and make sure you're on firm legal ground. If he can force you to sell, it'd probably be more profitable to come to an agreement.
posted by electroboy at 11:47 AM on September 27, 2010 [2 favorites]
posted by electroboy at 11:47 AM on September 27, 2010 [2 favorites]
Oops, or what carmicha said.
I suppose if he needs to access his property through the easement, you could buy the strip or property and sell him an easement for a nominal sum.
posted by electroboy at 11:49 AM on September 27, 2010
I suppose if he needs to access his property through the easement, you could buy the strip or property and sell him an easement for a nominal sum.
posted by electroboy at 11:49 AM on September 27, 2010
IANYL, and I wasn't in my comment above. In California, the Subdivision Map Act makes it very expensive to just buy a strip of land from your neighbor. There are city and/or county public hearings, a plat map drawn by a civil engineer or land surveyor, fees to governmental agencies, minimum lot sizes, building setbacks, zoning, etc., etc. The cost of all this is going to be more than the value of the land and you would still have to pay him for it. Buying this strip is not an economic option.
Looking at the fact that this easement pre-dates your ownership and, possibly, his, I would try to explore just what makes it a problem to him now. Does he want to build a pool there? Is he tired of having you drive in and out? Is he running into re-financing problems? If none of his problems are insurmountable, you are probably best served by politely refusing to give up a valuable access for your property.
It would interesting to find out the origin of this easement. Was it created as a reservation when his property was divided off of yours or was it created to satisfy a governmental requirement that your property needed because of the old garage? Knowing how the easement got there in the first place can help argue for its continued existance.
posted by Old Geezer at 1:30 PM on September 27, 2010 [1 favorite]
Looking at the fact that this easement pre-dates your ownership and, possibly, his, I would try to explore just what makes it a problem to him now. Does he want to build a pool there? Is he tired of having you drive in and out? Is he running into re-financing problems? If none of his problems are insurmountable, you are probably best served by politely refusing to give up a valuable access for your property.
It would interesting to find out the origin of this easement. Was it created as a reservation when his property was divided off of yours or was it created to satisfy a governmental requirement that your property needed because of the old garage? Knowing how the easement got there in the first place can help argue for its continued existance.
posted by Old Geezer at 1:30 PM on September 27, 2010 [1 favorite]
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Don't make any offers. Invite him to make you an offer.
With his criteria in-hand, you then have a firm starting point for discussions with your attorney or other relevant professionals.
Good luck.
posted by jbenben at 10:56 AM on September 27, 2010