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How do you avoid conflict in a boundary dispute?

On Behalf of | Apr 14, 2021 | Real Estate Transactions

Boundary issues between property owners are more common than most think, and they can develop into unpleasant territorial disputes. Often the altercation is sparked when a homeowner claims that his neighbor’s driveway is over the boundary line, or when one neighbor decides to replace a fence and discovers that the current fence is not on the property line.

The two sides can come together to find a workable resolution, often through the creation of an easement. Because Delaware property law is complex and it can be prohibitively expensive to go to court to resolve a boundary dispute, residents in Georgetown and Sussex County can benefit from knowledgeable legal counsel that will help them to find practical resolutions that protect a homeowner’s interests.

What is an easement?

An easement is a nonpossessory interest that gives one party a right of way or use of property that they do not own. There are two types of easements, in gross and appurtenant. The first type is assigned to an individual or a company for a specific purpose. An example of this type of easement is to a utility company.

The second is attached to the property, not the individual, and transfers with the property. One example of this type is a right-of-way easement, in which the owner allows an individual to cross into their property to get to another location. This can be a portion of a private road, a corner of the owner’s lot, or a private alleyway.

Easements can also be affirmative when the property owner allows someone the right to do something, or negative when the owner promises to not do something, such as develop property or create a structure that obstructs a scenic view. Conservation easements, used throughout Delaware to preserve farmland from development, are the second type.

What issues can come up that require a remedy?

Many issues arise when an existing easement is misunderstood or unknown to all parties. Easements are usually created by a transfer of deed, or through a contract or will, although implied easements are the result of circumstance or practice and are not always apparent. Not every property deed includes easements, but they are often recorded as part of public record.

In litigated cases, if the owner alleges that the easement holder has unduly burdened their property, or if the easement holder claims that the owner has trespassed on the easement, the courts may award compensatory damages to the burdened party, or even order the termination of the easement. Issues and claims may also arise when an easement is created by prescriptive use, estoppel or condemnation.