Putting in a pool - can we get rid of our neighbor's easement to cross our property?

Doublechecking the terms of an easement, and finding out whether a neighbor might be willing to vacate it.

Question

I am planning to install a pool in my backyard. Unfortunately, my neighbor has an easement across my property and the trail my neighbor uses goes right across the spot I want to put the pool. Can I get rid of the easement?

Answer

You didn't mention how you know about the easement, including whether it is in writing or understood orally, but if it is a valid and enforceable easement, you will be able to get rid of it only with your neighbor’s consent. A landowner cannot unilaterally terminate an easement. For this reason, your best shot at getting rid of the easement may be to get your neighbor to vacate the easement.

Before approaching your neighbor about vacating the easement, however, you should

  • Get a copy of the easement if you don’t already have one. Generally, to be enforceable, an easement must be in writing (although it is possible your neighbor has a prescriptive easement or implied easement). To find a copy of the easement, you can research the public records (check with your local government to determine how to do this) or ask a title company to perform the search for you (usually for a fee).
  • Carefully review the easement to determine whether you have the right to revoke the agreement. Is what you believe to be an “easement” actually a “license”? Unlike easements, a license can be revoked by the landowner, and so will probably contain language saying something like, “This agreement may be terminated by either party for any reason upon 30 days notice.” Easements and licenses are similar and sometimes get confused.
  • Confirm that the trail used by your neighbor is actually located within the easement boundary. It is possible that the specified location of the easement is not where your neighbor’s trail is actually located. Maybe there isn’t a conflict after all. To confirm the proper location of the easement you may need to hire a surveyor. However, the written easement may include a description of the easement’s location that can be easily understood, even by people who aren't professional surveyors, so check.
  • Confer with a real estate attorney regarding the above issues and also whether there may be a legal basis upon which to argue that the easement has been abandoned or is otherwise not enforceable.

If it looks like the easement is enforceable, your best bet may be to ask your neighbor to vacate or relocate the easement. Be prepared to pay him or her to do so. Unfortunately, if your neighbor refuses to vacate the easement, you most likely will not be able to get rid of it.

To protect your rights, you should confer with a real estate attorney. Also, since conveyances regarding real property must meet certain requirements, an attorney can help prepare and properly place in the public record any agreements reached with your neighbor.

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