Q: I have a house in a rural area that was mapped out 32 years ago for a residential development. There is a main easement that runs past our house that I would like to acquire. We own about 3 acres on both sides of the easement.
There is an adjoining road that comes to intersect past our property so our purchase would not inconvenience anyone in the future. I would like to close the easement and make it private or buy the easement. How would I propose to do this? Where do I start?
A: As with any other purchase, the first thing you need to know is who owns the easement. Once you determine the ownership, you can make them an offer to relinquish their right to the easement.
If the easement is owned by an individual, you’re in luck and you can negotiate a price. Once you have negotiated the price, you can have a document drafted that terminates the easement and have the document recorded to put everyone on notice that the easement has been terminated.
Your situation may be a little more complicated. The easement may have been part of a plat for the development of your project. That grant of easement on the plat may run for the benefit of the owners of the development or even to the public. If you are in that particular circumstance, you’ll have to follow the laws in the state in which you are located in to determine how you might proceed to vacate the easement.
If the easements are on your land, you should have a record of the party that received the easement. Your title insurance policy from the time you purchased your property should reference the easement and should state who benefits from that easement.
If the easement is not on your land but is adjacent to your land, you might need to go to your local recorder of deeds’ office or clerk of the court’s office or any local governmental office that is used to record land records in your county and determine who owns the parcel of land adjacent to yours and see if you find a copy of the easement document.
Once you have the owner’s name, or if the easement is a public easement, it will be easier for you to know what you are up against.
For starters, you might have to meet with your local town or county officials to determine the process for vacating a public easement. In addition to those county offices, you might have to get the approval of utility companies in case they were given rights to use the easement. And, finally, if an association was created for the development, you might need that association’s approval to vacate the easement.
If the easement is needed for future use or expansion and has never been used as a road or by any utility company and you have alternate land that can replace the easement area, you might have better luck with all of the different agencies to relocate the easement area as opposed to trying to terminate the easement.
You might find that you will need the help of an experienced land use or zoning attorney. In some localities, creating easements in developments is a complicated issue and it’s even more complicated to get rid of them or change them once they have been created.
May 21, 2009