how should i think about an easement on a property i might buy?
May 7, 2012 1:19 PM Subscribe
How worrisome is it to have an easement with your neighbor on a path between the two properties? I am mostly worried that someone might break their neck there, then sue me. Is that a legit issue? Are there other angles to this that I should consider?
I am thinking of buying a house. It comes with a perpetual easement allowing the neighbors to use the "overhang" between their house and "my" house. (The two houses are very close together.) Might this cause liability issues for me? Other issues? You are not my lawyer, but perhaps you've encountered this situation before!
I am thinking of buying a house. It comes with a perpetual easement allowing the neighbors to use the "overhang" between their house and "my" house. (The two houses are very close together.) Might this cause liability issues for me? Other issues? You are not my lawyer, but perhaps you've encountered this situation before!
Why would it cause liability issues? The very first thing you do as the new owner of a home is buy homeowner's insurance. Peace of mind achieved.
posted by yclipse at 1:28 PM on May 7, 2012 [1 favorite]
posted by yclipse at 1:28 PM on May 7, 2012 [1 favorite]
I'm not totally clear on what kind of easement you're describing, but if there's a sidewalk in front of a house, that's also an easement. I'm not aware of any issues with people breaking their necks on a sidewalk and suing the owner of the house they fell in front of.
posted by cmoj at 1:31 PM on May 7, 2012
posted by cmoj at 1:31 PM on May 7, 2012
If you don't have a real estate agent who is assisting you, you might want to think about finding one.
This one of a gajillion questions that person will be able to answer.
posted by John Borrowman at 1:31 PM on May 7, 2012 [2 favorites]
This one of a gajillion questions that person will be able to answer.
posted by John Borrowman at 1:31 PM on May 7, 2012 [2 favorites]
In most states, if your neighbor allows someone to use the path, and that someone gets hurt, then it is your neighbors problem - the injured party is an invitee of the neighbor, not you.
posted by Flood at 1:33 PM on May 7, 2012
posted by Flood at 1:33 PM on May 7, 2012
The easement wording is important. I've seen easement agreements prepared by real estate lawyers laying out the specifics, and I've seen easement agreements written on the back of the proverbial napkin.
Check with your insurance agent about insurance coverage. Your insurance agent will probably want you to take an umbrella policy because of the shared easement, and it's hard to say if that's the right direction to take - insurance agents think umbrella policies are needed for everything from overhanging trees to dogs to sloping sidewalks to having a crazy neighbor with a history of violence. At least the advice from your insurance agent is free, but of course the additional insurance isn't.....
And have a real estate lawyer take a look at the actual agreement. The lawyer will charge as little as $75 to give you new boilerplate, to $350 and up for consultation on the current document. I believe it is money well spent in today's litigious society.
Also, my standing advise to all real estate questions - remember, your Realtor and you are in a business transaction, and everything is negotiable; even with your Realtor. I would not hesitate a second to ask my Realtor to have their agency or broker, and their lawyer, to look over the agreement and give you free advice as to what is normal and customary re: easement agreements in Portland, OR. If there is a need for a lawyer and additional costs, see if your agent will cover the fees.
posted by lstanley at 1:34 PM on May 7, 2012 [2 favorites]
Check with your insurance agent about insurance coverage. Your insurance agent will probably want you to take an umbrella policy because of the shared easement, and it's hard to say if that's the right direction to take - insurance agents think umbrella policies are needed for everything from overhanging trees to dogs to sloping sidewalks to having a crazy neighbor with a history of violence. At least the advice from your insurance agent is free, but of course the additional insurance isn't.....
And have a real estate lawyer take a look at the actual agreement. The lawyer will charge as little as $75 to give you new boilerplate, to $350 and up for consultation on the current document. I believe it is money well spent in today's litigious society.
Also, my standing advise to all real estate questions - remember, your Realtor and you are in a business transaction, and everything is negotiable; even with your Realtor. I would not hesitate a second to ask my Realtor to have their agency or broker, and their lawyer, to look over the agreement and give you free advice as to what is normal and customary re: easement agreements in Portland, OR. If there is a need for a lawyer and additional costs, see if your agent will cover the fees.
posted by lstanley at 1:34 PM on May 7, 2012 [2 favorites]
If you don't have a real estate agent who is assisting you, you might want to think about finding one.
Understand a real estate agent cannot provide legal advice.
posted by werkzeuger at 5:20 PM on May 7, 2012 [1 favorite]
Understand a real estate agent cannot provide legal advice.
posted by werkzeuger at 5:20 PM on May 7, 2012 [1 favorite]
Property law is weird. Please don't take legal advice from the internet. If you're looking into buying property, a couple of hours with a real estate lawyer is a great investment.
posted by freshwater at 8:27 PM on May 7, 2012 [1 favorite]
posted by freshwater at 8:27 PM on May 7, 2012 [1 favorite]
First off sidewalks are not usually in an easement-they are in the public Right of Way, which is public property with a special use status. Even if you think it is in your property, it probably isn't. Most towns/cities ROW extends well into yards that people think they own.
Second there all kinds of easements. Public access, public utility, private access (driveways usually), private utility and so on. Your public works department will have a copy of the easement that defines all this you should go and get if your real estate paperwork does not. Most easements are actually not difficult for a layman to understand, and your public works department can probably help you with a basic understanding of what is going on.
thirdly, my understanding is that you are only liable if you create and/or contribute to a dangerous condition on the easement. So if the access is public and some kid is riding their bike down it, and god forbid, crashes and is injured you are not liable unless you allowed to the easement to fall in disrepair (when it was your responsibility) and this contributed to the accident, so something similar. If some idiot just manages to hurt themselves in the easement when you are keeping it clean and in repair than you shouldn't be liable. However shouldn't doesn't pay court costs, lawyer fees and juries may not agree with my understanding. So, after your read the easement, you should probably pay a land use attorney some money to explain what this easement means to you.
posted by bartonlong at 9:29 AM on May 8, 2012
Second there all kinds of easements. Public access, public utility, private access (driveways usually), private utility and so on. Your public works department will have a copy of the easement that defines all this you should go and get if your real estate paperwork does not. Most easements are actually not difficult for a layman to understand, and your public works department can probably help you with a basic understanding of what is going on.
thirdly, my understanding is that you are only liable if you create and/or contribute to a dangerous condition on the easement. So if the access is public and some kid is riding their bike down it, and god forbid, crashes and is injured you are not liable unless you allowed to the easement to fall in disrepair (when it was your responsibility) and this contributed to the accident, so something similar. If some idiot just manages to hurt themselves in the easement when you are keeping it clean and in repair than you shouldn't be liable. However shouldn't doesn't pay court costs, lawyer fees and juries may not agree with my understanding. So, after your read the easement, you should probably pay a land use attorney some money to explain what this easement means to you.
posted by bartonlong at 9:29 AM on May 8, 2012
sorry, i hit post too soon. This sounds like a private access easement and it might be a presumptive easement. If it doesn't have actual paperwork that is recorded against the property, you want to get that taken care of too cover your ass, which will require a land surveyor and probably a lawyer, but these kind of things are the bread and butter work of both that should be routine, fast, and not too expensive.
posted by bartonlong at 9:32 AM on May 8, 2012
posted by bartonlong at 9:32 AM on May 8, 2012
Are you talking about a kind of blind alley between them? Something that's common to other properties in the area? Lots of rowhouses have such things between them, a shared tunnel-like hallway that leads from the front to the rear yards. This being how the garbage cans get brought out from the back to the front street for pickup, among other things. It's a typical arrangement and most deeds will make note of it.
If you're concerned about potential liability then consider adding an umbrella liability policy in addition to your homeowners. They're inexpensive and can add a back-stop of additional coverage should other policies (house, car, boat, etc) not cover things fully.
posted by wkearney99 at 4:14 PM on May 9, 2012
If you're concerned about potential liability then consider adding an umbrella liability policy in addition to your homeowners. They're inexpensive and can add a back-stop of additional coverage should other policies (house, car, boat, etc) not cover things fully.
posted by wkearney99 at 4:14 PM on May 9, 2012
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posted by feets at 1:20 PM on May 7, 2012