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What is an Overburden of Easement and Who Can Improve a Right of Way?

On Lawyer & Legal » Real Estate & Property Law

3,322 words with 1 Comments; publish: Wed, 17 Sep 2008 07:36:00 GMT; (80062.50, « »)

I have a home on 2 acres of land at the end of a dead end street in Massachusetts that I purchased 15 years ago.

My neighbor who lives behind me as a right of way across my property to access his property. The right of way easement is a strip of land that runs along the left edge of my property line; it is 180 feet long and 35 feet wide. It is currently gravel and I have always maintained it and kept it passable for my neighbor and me because i also use about 90 feet of the gravel pathway to access my own driveway.

Its worth mentioning that this right of way is clearly out of convenience and not necessity because my neighbor has a primary paved driveway that he can access from the street behind me (his frontage is on that street and he has zero frontage on my street).

Here is the issue, my neighbor petitioned the town to subdivide his 5 acres of land and put an additional single family house on it. In order to meet the 150 foot frontage requirement the town allowed him to reconstruct his existing primary paved driveway (add on to it) and call it a street. So his old paved driveway will now connect to my property where the right of way meets up with it.

The excavation began last week when I was away on business. I got home Friday night and was surprised to discover that the contractor came onto the easement (my neighbors right of way on the land that I own) and excavated 6 to 10 inches of the gravel. My neighbors plan is to pave the right of way and make it accessible to the newly created street giving access (secondary access at that) to the new house lot that he is creating.

In a sneaky way he will turn the dead end street I live on into a through street (by connecting the right of way and his newly created street/driveway to the street behind me)

My question is 2 fold

A) Does my neighbor have a right to make improvements on the right of way that I own, maintain and keep passable?

B) Would his plan to subdivide the property and let the newly created house lot have the benefit of using the right of way be considered an overburden of the easement? (Keep in mind that both house lots have access to their property via the newly created street that intersects with the street behind me) In no way are either properties land locked.

C) Could I have the easement revoked based on the following facts?

1) This is clearly an easement of convenience not necessity.

2) The reapportionment of the land has created (or will create)an overburden.

D) My property deed is very unspecific with regards to the easement. It states "said parcel contains 1.98 acres, according to said plan, and is subject to a 35' wide Right of Way, as shown on said plan. Would there be a separate deed specific to the easement?

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    • You overburden an easement when your use is excessive, given the intended use of the easement. The relief would normally be to restrict the use to that use permitted under the language of the easement.

      You need to take all of the documentation to a real estate lawyer, and discuss your rights and options. No matter what we tell you here, the longer you delay the more likely that this will be a "done deal" by the time you get around to talking to a lawyer.

      #1; Sat, 20 Sep 2008 11:15:00 GMT