Q: We have an easement on our property and our neighbor is putting in a pool which will encroach onto the easement. We are planning to sell our home within a year and would not like this to be an issue. Can we get the easement canceled so that there will not be any problems with the easement for future homeowners?
A: The real issue is determining what the easement is for. If the easement is between you and your neighbor and is no longer needed, you can both agree to terminate the easement. You would draft a document to terminate the easement and would need to have that document recorded in the office in which land records are recorded in your county.
Since you indicated that your neighbor’s pool will encroach on your easement, I have to assume that the pool will be on your neighbor’s property and that the easement you are referring to is on your neighbor’s property. That makes it seem as if the easement is for your benefit and not your neighbor’s.
If the easement is required for your use of your property and their encroachment into the easement area is a problem for you, then you have to work with your neighbor to redesign his pool to avoid the easement area. The easement may be for your sewer or water lines or even electrical and phone connections. The easement could even be for you to drive to get to your property. You better be certain that their pool won’t affect you in any way.
While you may not mind now that they build the pool and encroach on the easement area, if it narrows the area available to you and you need that area in the future, you might be out of luck.
If the easement is a third party easement for the electric company, local municipality or an easement that was created with the subdivision for all of the lots in your area, you need to investigate further whether your neighbor’s use of the easement area could cause them a problem as well.
Before you rush out to terminate the easement, research the easement, understand what it is for and then you can terminate it if you can or even modify the easement area to exclude the pool area.
If you’ve done your homework and work with a real estate attorney in your area, you shouldn’t have problems when it comes to selling your home later on.
Published: Aug 6, 2008