When improvements abut property lines, landowners will
inevitably encroach on the neighboring property when maintaining and repairing their
own property. Of course a landowner can
always just ask for permission to have equipment, contractors etc. go onto the
neighbor’s property while conducting the repairs, but that assumes the neighbor
will be reasonable and accommodating. Even if a good relationship between
neighbors exists today, it could change in the future or the property may
change hands and the new neighbors may not be cooperative.
If the need to encroach on the neighbor’s property will occur
on any regular basis, one solution is to enter into an easement agreement for
purposes of maintenance. Such easements can be simple (3-4 pages) or complex (30+
pages) as needed, based upon the needs of the property owners and the value of
the improvements that are affected, and are typically recorded and run with the
land. This would differ from a license
agreement. License agreements are a less permanent solution, are typically not
recorded, may be shorter in duration and are just between the parties to the
license and their permitted assignees. Easements,
unlike licenses, are insurable under the property owner’s title policy
At a minimum, every easement needs to clearly identify the
parameters of the easement. For example, when a parking lot abuts against a
neighbor’s fence or driveway, a simple maintenance easement that’s runs approximately
10’ along each side of the property line may suffice.
The easement agreement must also contain a formal grant of
the easement right and identify the purpose of the easement, such as “the
nonexclusive right, privilege and easement upon, across over and through the portion
of the easement promises that is located on the [neighbor’s] property for the
maintenance and repair of improvements located on the [landowner’s] property”.
Limitations on the easement would include not causing
damage to the other’s property, or unreasonably impeding or impairing the
neighbor’s use of its own property.
The easement term should also be addressed. Typically such
easements would be perpetual unless the parties to the agreement mutually agree
to terminate. However, if there are any circumstances in which either party might
have legitimate reason to want the easement terminated earlier, then it should
be addressed in the agreement. One example would be if the easement is unilateral,
not reciprocal, and the landowner needing the easement agrees to pay for the
easement right. If the landowner stops making the agreed upon payments, the easement
agreement should address the neighboring landowner’s right to terminate the
easement due to nonpayment.
In complex situations, where there are costly improvements that
are intertwined with other property owners’ improvements, the parties may want
to include more extensive obligations to maintain improvements in good repair
at a specified level of quality, and to indemnify the other for damages it may
cause. One example of a more complex support and encroachment easement would be
the reciprocal assess and easement agreement and other related maintenance
easements between the City of Cleveland and Cuyahoga County regarding the Cleveland
Convention Center, the City parks located on top of the Convention Center and
the property lines that run between the parks, Public Auditorium, the medical
mart, and parking garages. Copies of these easement agreements are recorded in
the county property records and are public documents.
Whether the potential maintenance and support issues
between neighboring properties are significant or simple, recording a
reciprocal easement agreement may be the most viable lasting solution.
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