Easements

One of many reasons to have the right attorney!!

If you own property near a lake or pond in Maine, odds are good that you or a neighbor has an easement. So common and yet so misunderstood, easements can be one of the most frequent sources of real estate disputes.

Strictly speaking, an easement is a right to do something on someone else’s property. An easement does not confer ownership rights; rather it grants the ability to perform some act on the property. While often called "rights of way," easements are not restricted to crossing over the property of another. It could be the right to seasonally farm or mine, it could be a shared driveway; it could grant the right to pass and repass over the land of the grantor to access a lot, a beach, or a shared dock.

While many easements can be located by researching the title to your property, many others cannot. There are multiple kinds of easements recognized by Maine law and most do not have to be recorded at the registry of deeds. Easements by agreement, easements by estoppel, prescriptive easements, and easements by implication are all created by conduct and by the history of the use of the land. These are likely to be unknown to a new purchaser, but are no less binding than an easement recorded in the registry of deeds. Likewise, longtime residents can find themselves embroiled in a dispute with new owners when the easements rights, never reduced to writing, are ignored or contested.

This is Maine: When the easement was created, everyone knew what the agreement was and exactly where the right of way was located. Over time, the specifics of that original agreement become lost. Even when reduced to writing, it is not at all uncommon to find that the language in the deeds is vague and unclear to modern readers. While all the original grantors knew where the "path to the beach" was when they first set pen to paper, the land has changed. Perhaps it has been developed; the right of way no longer hugs a rock wall at the edge of a pasture; it cuts through the middle of a hoped-for housing development.

And what of the person who owns the land over which the easement crosses? What can he do with his property? Can he build on his property? Maintain a fence? Can he park on it? When trying to make use of his own property, is he restricted in what he can do? The answer will depend on the specific facts creating the easement rights. Like much of the law, the correct answer may defy "common sense."

We can help. I’m a Windham native. At Ainsworth, Thelin & Raftice, P.A., we have been helping property owners negotiate the tricky waters of easements for more than a quarter of a century. We have resolved easement and property disputes throughout Southern and Coastal Maine. We are also the legal agent for hundreds of Maine companies. If you, your clients, family, friends, or neighbors need a problem solved, please call us.

~ John Turcotte, Attorney at Ainsworth, Thelin & Raftice, P.A.