When a grantor confers the right to use an easement to another party, the easement holder obtains a nonpossessory interest in the property. This means that the easement holder may continue to make use of the land and to exclude other parties who interfere with his personal use of the land. In general, the easement holder obtains the right to do whatever is reasonably necessary to utilize and enjoy the property for which the easement was granted. But what is the scope of the rights of the easement grantor once the easement has been granted? States may impose restrictions on grantor’s rights that can become onerous when landowners later choose to make significant or permanent improvements to the land.
Georgia courts clarified the easement holder’s right to use the land in Upson vs. Stafford. The court established the general principle that the easement holder of an access easement must be “adversely affected, or substantially or material interfered with” in order to limit or prevent the property holder’s unauthorized use of the land. Thus, the grantor of an ingress-egress easements is free to erect structures on the land or to make measurable improvements that do not constitute a substantial interference with the use of the property by the holder of the easement.
In subsequent cases, the standard set forth in Upson evolved; the rights of the grantor to use the property have been treated more restrictively in order to ensure maximum protection of the easement holder’s rights. So how does the law treat various types of structures erected by the grantor on the property? The grantor is not permitted to place a fence or gate across an easement when it has granted an access easement to another party. The courts in Georgia have held that the easement holder has the right to full enjoyment of the encumbered property in the condition in which it was originally granted to him. This means that it does not matter why the grantor has opted to erect a fence or gate, whether for security reasons, to protect his personal property, or to conceal the path of the easement. Similarly, the grantor should refrain from making structural improvements that obstruct the easement unless the written agreement granting the easement permits such action.
The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at https://www.markweinsteinlaw.com to find out how they can advise you.