Easement Question
I'm purchasing a property and have just discovered that there is an easement covering the blacktop area east of the garage, apparently for parking for the business next door. My understanding is that this is not an easement by necessity. Is there anything I can do to either eliminate this easement or secure compensation from the business for using my property?
what is an easement by necessity?
The right of an owner to cross over another's property for a necessary purpose.
For example if your property is located behind another individual's property, but the only way for you to get to your property is by going over the other person's property. In this case your easement is by necessity.
Everything for the easement should be available from the courthouse. If the easement says that the other property owner can use it without incurring any cost, indefinitely, then you really can't do anything. Your purchase is subject to any existing easements. Any compensation would be received from the current owner in the form of a lower purchase price.[ Edited by rmdane2000 on Date 06/10/2004 ]
I'm impressed that you found the phrase "easement by necessity" but its the wrong concept for your situation.
An Easement by necessity is an english common law doctrine which says that no land should be impossible to get to. Therefore if you own a property which is completely surrounded by other private property an easement "by necessity" is created across some other landowners property so that you can get to yours. This easement is not created by the agreement of the parties and it does not even have to be recorded to be in effect. Unfortunately most of the time these days it is very difficult to get this doctrine actually enforced. The phrase does not mean that where there is no necessity it is possible to get the easement vacated.
The easement you have would appear to be the more garden variety. Some past persons, by agreement, gave one landowner the right to pass over or otherwise use a portion of another landowners property. Not only can you probably not get them to pay you for this right at this late date and not only can you not revoke the easement if you wish to get this right back from the other landowner you must pay them for the priveledge.
Unless the person who granted the easement limited it in some way. Either in time (the easement is for 10 years only) or by purpose.
I have a friend who owns a house which is adjacent to the Illinois central railroad tracks here in chicago. 150 years ago the tracks were built along the on the shore of lake michigan and so my friend has an easement across the IC right of way "for the purpose of drawing water" from the lake. The IC tracks are now on top of a 15 foot tall embankment with concrete walls on each side so my friend can no longer get to the lake to draw water. However the lake is also not on the other side of the tracks anymore. In the last 150 years the lake on other side of the tracks has been repeatedly filled in so now the lake shore is probably at least a mile from my friends house.
Should my buddy attempt to go to court the judge is going to say that the purpose of the easement is no longer valid (why would you walk a mile to draw water when the city delivers it to your faucet) and therefore the easement is vacated.
Short of that, however you're stuck with it.