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| Best Practices: Law |
Of Ways and Rights
Michael Verdon
01/01/2005
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According to Merriam, dealing with hidden easements can be daunting, but not insurmountable. “First, you should get a title insurance policy based on a survey that specifically protects the owner from the claim of a prescriptive easement,” he says. “That will help you defend yourself against a claim and also compensate for the loss of the property’s value.” One of the more straightforward ways to keep a prescriptive easement from becoming legally binding is to post no-trespassing signs (which some states require by law), raising gates and calling police on trespassers. This creates an official paper trail of a landowner’s attempts to deny access.
A more effectual option might be to actually grant an easement—of sorts. If an owner grants permission to use his property, he effectively cancels a trespasser’s claim for a prescriptive easement. “If I have a written agreement in the form of a license,” Merriam says, “I can revoke that license at will. Licensing lets you list conditions such as the number of people allowed to use the easement, when it opens and closes and other factors to ensure your security and privacy.”
In other cases, public easements can be deemed legally abandoned or discontinued if they are not used for a prolonged period of time, as was the case with Steiner’s long-deceased seaweed farmer. Merriam assisted with a recent case in which a New England village’s board of selectmen called a town meeting to officially discontinue an easement. “One way to get rid of these things is just to get the government to fix it,” he says. “Sometimes it takes an act of the local legislature, and other times the government can sell it outright to the property owner.” Merriam adds that one former client of his discovered only after he purchased property that an easement ran directly through a sunken garden. “He made a deal with the owner of the easement to relocate it to a distant part of the property,” he says. “The easement owner didn’t care as long as he had access.”
Oceanfront easements involving public trust doctrine can be a trickier legal battle, and may be more difficult to abolish or transfer, as the Malibu owners have discovered. But, if forced upon them, owners can have some say in the specific conditions of the easement, including its hours of operation and the prohibition of future development. “Be careful that you are not granting more than you need to with any easement,” Merriam cautions. “You don’t want to agree to anything that can potentially damage your property.”
Illustration by Edward Fotheringham.
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