Requesting Use of Abandoned Public Streets or Easement Vacation

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 What Is an Easement?

In legal terms, an easement is the legal right to use another person’s real property for a specific purpose for a specified amount of time. As such, an easement provides a person with the legal right to go through another person’s land when their usage is consistent with the specified easement restrictions.

It is important to note that an easement grants a possessory interest in the property to the easement holder for a specific purpose. However, the actual landowner still retains the title to the property. It is also important to note that because easements are associated with real property, they are governed by real property law.

An example of an easement would be if a landowner allows their neighbor to use their private road or path to reach their home or a specified location. Other common easements include easements related to public utilities, power lines, or cable TV/internet lines.

Importantly, an easement can be granted to anyone, but they are generally granted to neighbors, government agencies, or private parties. Further, easements are often granted to public utility companies prior to an individual purchasing a piece of land or home.

As such, if you wish to know the location of sewer lines or hidden power lines, the best way to find those public utility easements would be to contact your local utility company. However, the best way to determine whether or not your property is subject to an easement is to contact the County land records office or your local County Clerk’s office.

Most easements are either recorded on or attached to the actual deed for the property that you own. As such, you could also search for an easement at your local city hall. Any easement that is recorded on the title to your property will also include a reference number, which the county clerk can then use to locate the original easement document for you to make a copy of.

In terms of the different types of easements, each state may recognize several different types of easements depending on the local real property laws. In general, there are three main types of easements:

  • Easement By Prescription: Also commonly referred to as a “prescriptive easement,” an easement by prescription is an implied easement that is gained under adverse possession.
    • This means that someone other than the property’s original owner has gained use or ownership rights to that specific piece of property.
    • A prescriptive easement can be established as long as a person has actually used the land or property openly and continuously for a specified amount of time without the permission of the actual land owner;
  • Easement By Necessity: An easement by necessity is generally created by the law and not by a specific promise or agreement between neighbors. In other words, the law implies the easement’s existence to achieve just results.
    • For example, a property could be landlocked, meaning it cannot be accessed except by traveling over other property. In that case, the law may create an easement by necessity in order to allow the landlocked owner access to their own property by way of the other landowner’s property;
  • Negative Easement: A negative easement creates an obligation or a restriction in which the property owner cannot use their own property in a specific way that would otherwise be legal.
    • Negative easements are generally treated as restrictive covenants on the original owner’s property.

Other common examples of types of easement include:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and
  • Easement by estoppel.

What Is an Easement Vacation?

When a property owner is interested in developing their property but is restricted by nearby public roads or utilities, they can request the county to vacate their public use in order to allow them to develop. Typically, vacating an easement is done through a vacation of easement form or application to vacate right of way or easement that is located on the county clerk or respective road and bridge department’s web page.

For example, a property owner may want to build an addition to their home but is unable to do so due to public pipes that are out of use. In that case, they could ask the city to vacate the public pipes, which would allow them to build the addition.

  • An easement vacation is when a city completely or partially abandons its public use of a road or easement through a street vacation procedure. The definition of “roads” may include streets, highways, and paths.
  • Easements can include many public utilities, such as pipes, sewers, and electric lines.

Depending on the circumstances of each scenario, an easement vacation may be granted quickly through a summary vacation. Alternatively, an easement vacation may be granted through a longer process known as a general vacation.

What Is a Summary Vacation?

A summary vacation is a quicker and simpler process that a property owner may use to obtain an easement vacation. In a summary vacation, the county will notify affected property owners and agencies of the vacation request. Then, after allowing time for a response from affected property owners, the county will hold a hearing. Summary vacation processes typically take approximately 6-8 weeks.

However, summary vacations are only available to property owners under certain circumstances. For example, when the subject public path or easement has been unused, abandoned, or superseded for a specific amount of time, the summary vacation process may be available.

What Is a General Vacation?

If a requested vacation does not qualify for a summary vacation, then it is considered to be a general vacation. Under a general vacation, the local board of supervisors must adopt a resolution of their intention to vacate.

Then, after doing so, they must notify affected property owners and agencies and allow them time to respond. From there, they will need to hold a hearing on the matter. The general vacation process can take approximately 10 to 12 weeks in order for a resolution to be reached.

When and How Are Vacations Granted?

When determining whether or not to grant an easement vacation request, county courts will consider a variety of different factors, including:

  • Whether or not the public is currently utilizing the street or easement;
  • Whether or not the public may use the street or easement in the future;
  • The existence of alternative or superseding streets or easements;
  • How the easement vacation would likely affect other property owners and agencies in the specified area; and
  • The hardship experienced by the individual who is requesting the easement vacation is granted.

For example, if an area requested for an easement vacation is:

  1. Not being used by the public;
  2. Not negatively affecting neighbors or public agencies;
  3. It would greatly benefit the individual who is making the request.

Then, the county court would be more likely to grant the request. However, the county could be using the land, or an easement vacation could be negatively affecting neighbors or public agencies in the area. If so, then the county will be less likely to grant the easement vacation.

Contacting an Attorney

If you would like to request an easement vacation, or if you have any questions concerning easements in general, it is in your best interests to first consult with an experienced real estate lawyer. An experienced property attorney can help you understand your state’s specific laws and processes when requesting an easement vacation.

Further, an attorney can also provide you with your best course of legal action and represent you in front of your local county department that is responsible for public street or easement vacations. Finally, an experienced real estate lawyer will also be able to represent you in court, as needed, should legal action be necessary.

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