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An Easement Crosses My Property – What Are My Responsibilities?

Robert Frost knows that “good fences make good neighbors.” If anything makes a bad neighbor, other than a bad fence, it is a bad easement. Easements can be a significant source of contention among neighbors, causing ill will, hostility, and sometimes costly litigation. Among the issues that may arise between the dominant estate holder (the person whose property is benefited by the easement) and the servient estate holder (the person whose property is burdened by the easement) are questions regarding who must maintain the easement area, what activities are allowed under the easement, and how to enforce each party’s rights under the easement.

Responsibility to Maintain the Easement

The North Carolina Supreme Court has held that the dominant estate holder is responsible for maintaining the easement area. Green v. Duke Power Co., 305 N.C. 603 (N.C. 1982). Unless language in the easement provides otherwise, the servient estate holder has no obligation to maintain the easement area. Id. As a result, "if the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused." Id.

Overburdening the Easement

To determine whether the dominant estate holder is exceeding the rights under the easement, the servient estate holder should look first to the language granting the easement. If the language is unclear (as often will be the case when a dispute arises), then the analysis may turn to the intent of the parties who created the easement. It therefore may be necessary to evaluate the circumstances that existed at the time the easement was created. Depending on the language of the easement and the circumstances existing at the time the easement was created, uses not expressly allowed could be found to be in violation of the servient estate holder’s rights. See Swaim v. Simpson, 120 N.C. App. 863, 463 S.E.2d 785 (1995) and Moore v. Leveris, 128 N.C. App, 276, 495 S.E.2d 153 (1998). In other cases, the seemingly expanded use may be deemed permissible. See Chestnut Branch, LLC v. Public Interest Projects, Inc. (COA04-1406, 2006 N.C. App.). In any case, determining the dominant or servient estate holder’s rights under the easement will require a careful review of the granting language, the surrounding circumstances, and the relevant case law.

Enforcement of Easement Rights

What do you do if the easement holder is overburdening or failing to maintain the easement? A court can issue a mandatory injunction, requiring the easement holder to take certain action (such as maintaining the easement by clearing the easement area), or a prohibitory injunction, requiring the easement holder to refrain from certain action (such as using a utility easement for vehicular access). The same remedies may be available to the dominant estate holder if the servient estate holder is obstructing access to the easement. Obtaining a mandatory or prohibitory injunction against another party requires filing a complaint in the county in which the property is located and holding a hearing before a superior court judge. At the hearing, the judge has the option to impose damages in favor of the aggrieved party. The damages could be calculated to cover compensation for injuries suffered as a result of the violation or the difference in value of the easement before and after the violation.

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