Easement Dispute Lawyer

Easements

Many property owners are surprised to learn they do not have the exclusive use of their  property. Whether it is express or implied, someone else may have the right to use your land for a specific purpose. This right is called an easement. Though most properties are subject to easements, some easements can  harm the value of  property or limit its use. Easement holders, on the other hand, depend on easement  rights to accomplish specific purposes, such as access to their property. Whether you are a property owner or have an easement over another’s property, an attorney at the Law Offices of Mark Weinstein, PC can help you with understanding easements affecting your property and litigating disputes related to easement rights.

Easement Creation and Termination

Easements are meant to give a land owner the right to use someone else’s property for a limited and specified purpose. Once a land owner obtains an easement  right, which can either be by express grant, by implication, necessity or otherwise, the land owner, and any subsequent owner of the land, can continue to maintain the right in perpetuity. An easement is a right that cannot typically be taken away unless the easement holder engages in conduct that, under the law, is grounds for terminating the easement, or the easement is abandoned, terminated by a recorded termination or by operation of law.

Dominant and Servient Estates and Reciprocal Easements

The property owner of what is called the servient estate (the parcel of land that is subject to the easement) cannot interfere with the easement  rights of the dominant estate (the parcel of land that has an easement over the servient estate). If the easement rights of the dominant estate are interfered with by the holder of the servient estate, then the dominant estate holder can file a lawsuit to enforce their easement rights over the servient estate. For example, the dominant estate holder with a driveway easement over a servient estate can seek damages if the servient estate owner blocks the driveway over the servient estate. The dominant estate is often said to be benefited by the easement, while the servient estate is burdened by the easement.  At the same time, the servient estate owner can bring an action against the dominant estate owner if the dominant estate misuses or exceeds the scope of their access or other easement right. For example, if the dominant estate holder erects a structure on the access easement, the servient estate owner can ask a court to remove the structure,  make the dominant estate holder pay damages, and/or terminate the dominant estate holder’s easement.

Often times there are what are called reciprocal easements where the owner of one property has rights over another property and vis-a-versa.  For instance, a shared driveway may pass partially over two properties allowing both property owners access to a roadway. In this case, each property will be both a dominant and a servient estate with respect to a portion of the shared driveway. In the case of reciprocal easements, both properties are benefitted and burdened by the easement. Disputes may arise, for example, if one property owner blocks access to the driveway or fails to maintain it.

Types of Easements in Georgia

In Georgia, there are several types of easements:

  • Express easements – there is an express grant, usually as part of a contract or deed, that allows a person to use the property or another for a certain purpose.
  • Implied easements – owners of landlocked lands may have an implied easement for ingress and egress to their lands. Public policy does not favor people being trapped on their land with no way of reaching a road, and when a landlocked piece of property is sold it typically comes with an easement of access whether express or implied. However, in Georgia, if a landowner sells land and does not expressly reserve an easement, they can inadvertently leave themselves landlocked, which is one reason you should consult an experienced attorney before conveying land.
  • Prescriptive easements – there has been no express grant, but someone has been using the land as if they had an easement for a period of seven years or longer (and without permission), in which case their open, notorious, and continuous use may ripen by adverse possession into a prescriptive easement.
  • Easements by necessity – a court may order the compulsory purchase of the land over which an easement is claimed when one or more adjoining property owners is landlocked.

The most common type of easement is for ingress and egress to and from a property. It can be expressed, implied, prescriptive, or established by necessity.

Governmental easements are commonly granted for the following purposes:

  • Utility easements – the government or public utility company can have a legal right to use private property to install, expand, and maintain utilities such as electric, phone, or cable lines.
  • Drainage and sewer easements – the government or public utility company can have the legal right to an easement on your land to bury water lines or dig ditches that improve drainage flow.
  • Slope easements – the government may raise or lower the level or grade of your property to accommodate a new road.
  • Construction easements – if the government has a construction project near your property, it may obtain the right to use your land to construct the adjacent roadway, bridge or other improvement, as a staging area, or to help control erosion.

Easement Disputes

Property owners and easement holders often have competing interests. The property owner wants unfettered access to their land without having to share it, while the easement holder wants to maintain their access or other rights. Both can benefit from the help of a real estate attorney with expertise in easement disputes. Such an attorney can advise you of your rights and how to enforce them.

There are usually two core principles of Georgia easement law:

  • The easement holder’s use of the land cannot exceed the scope and the purpose of the easement.
  • The property owner cannot interfere with the easement holder’s rights.

Common disputes property owners and easement holders may have include:

  • The property owner may believe the easement holder abandoned their right by not using the easement for a certain period of time.
  • The easement holder may claim the property owner is impeding their right to use the easement.
  • The two parties may have a dispute over the boundary line of the easement.
  • The property owner may believe an easement holder is misusing their right or exceeding the scope of an easement.

In addition, the government does not have an unlimited right to establish easements on your property whenever it wants and without payment. Even if a government or public utility already has an easement over your property, if they exceed the scope of their easement rights their use of the easement  may be considered a taking. Then, the laws of eminent domain would apply, and you might be able to contest the taking. The government may need to limit their use of your property or offer you additional compensation for increasing the scope of an existing easement.


Easement Attorneys Frequently Asked Questions

What is the law in Georgia concerning an easement to a road if your property is landlocked?

The law does not expect you to go without access to any roads if your property is landlocked. Therefore, even if your property does not have an express easement over adjoining property to a roadway, you can typically count on an implied easement that will allow for ingress and egress to your land. The implied easement will run with the land and automatically pass to the next owner. However, in Georgia, if a landowner sells land and does not expressly reserve an easement, they can inadvertently leave themselves landlocked, which is one reason you should consult an experienced attorney before conveying land.

Who is responsible for easement maintenance in Georgia?

According to the Georgia Supreme Court, “the holder of an easement is responsible for repairs to the easement when the use of the easement is impaired due to lack of maintenance.” Said another way – the owner of any easement has a duty to maintain it.

How to know if your property has an easement in Georgia?

There are several ways to learn if a property has an easement:

  • Search public records
  • Hire a title company to perform a title search
  • Observe the land to see if there are any patterns of usage

How do you enforce your rights under an easement?

If you have rights under an easement, a court can help you to enforce them.

How do I terminate an easement in Georgia?

An easement can be terminated expressly by recording a termination of easement. An easement can also be terminated by bringing a quiet title action where an easement has expired or been abandoned.


Easement Dispute Lawyers

Both easement holders and owners of  properties subject to easements have rights and interests that may be in conflict with each other. If you have any issues that relate to an easement, the real estate attorneys of Law Offices of Mark Weinstein, PC are experienced and have a track record of handling complex easement issues in trial and appellate courts. You should involve us early in the process in the hopes of avoiding litigation. If not, we can represent your interests in court or on appeal. Call us today at (770) 888-7707 or contact us online to discuss your matter.