All Forum Posts by: Joshua Hardy

@Randy E.

Regarding the Utilities -> I do not have a specific written/recorded easement for these. However there was a house here in 1989 it burnt down, the water lines have been there for over 10 years, so this is simply a prescriptive easement, not considering the possibility for an easement by necessity. However, that isn't something I'm going to get involved with unless my neighbor decides to try to be a jerk.. then we will certainly end up in court. So far everything has been quite civil, and I intend on trying to keep it that way.  

For some reason some people are trying to paint me as a villain simply because I want to know what I own.  Exclusivity is an important concept.  And it is possible that the original drafting of the 'exclusive easement' was to be a complete transfer of that particular property right.  There are plenty of other property rights, think of mineral rights, these are also exclusive, however they do not have to own the land to have the mineral rights.

@Randy E.  Your post has given me much to think about.   I appreciate your thoughts on the future.  The commercial operation that has been approved by binding elements by the county is simply a storage building for his equipment and vehicles.  No customers or employees on site, no signs... things like that.  So I'm thinking that the planning commission is trying to maintain the bucolic agricultural feel of the county.  

@Bill Gulley  Thank you for your exhaustive post, however please understand, I realize I do not 'own' the lands title... however I do 'own' a property right over the land.  These property rights can be thought of like a bundle of sticks, and some of them can be separated and sold to other individuals... think of mineral rights.  The mineral rights can be thought of as exclusive to the person who holds that 'easement/lease/contract'.  I understand the concept of a typical non-exclusive easement.  What I'm most concerned and curious about is the wording 'exclusive' easement.  I understand how it seems that means it is exclusive to myself and my assigns... however could it possibly mean more in the eyes of the law?  I don't know, and hence why I posted here... people thought I was crazy for suggesting such a thought, however several other States have such laws.  I appreciate you input regarding English law and French influences.  I am still curious if I have purchased and actually own this 'exclusive' property right, by way of wording and possibly intent of the original contract.  For instance, if I did 'own' the actual title to the land then I could easily put up a fence and prevent others from entering.  Now my question is can I put up a fence?  Does my exclusivity end with the current owner, whoever that is?  If I wanted to put up a fence, would I have to get permission from the current owner?  Would I have to provide them with a key?   See there are many questions that can come up when you start to consider the possibility that I have tried to highlight, and that is one of 'exclusive' ingress and egress rights for that particular entrance to the property... which is obviously my entrance... which again I own an 'exclusive easement'.  

@Wei Xie  What did I do or say that would make you think you would not want to deal with a neighbor like me had you been in my neighbor's shoes?  

I too desire to have a good relation with my neighbors.  I do not desire to get involved in legal problems either.  

@Wei Xie yes, so much of life seems to be a gamble.  You never quite know.  You mentioned the loss of reputation among the neighbors, do you think I would risk that?

@JD Martin 1.) I don't have any reason to believe or not to believe that the definition of the word 'exclusive' is the same in California as it is in Kentucky. 2.) I explained to people who spoke out in ignorance of other States laws how it works in one particular jurisdiction.  Your personal remark speaks of the content in your heart; no reason to hope ill-will on someone... let alone someone on a forum dedicated to education.  It's all a learning lesson.  If I can help someone with information they aren't aware of which could help them, or the other way around, I think that's what this forum is for.  

@Jay Hinrichs This is also the way that I read the contract, however I also see this piece about exclusivity... which makes me VERY curious.  I agree, I do not want to get my back bowed up until I fully understand what I have.  I also do not want to get involved in any legal battles.  My primary concern is my driveway or a portion of it not be shared with a commercial entity... which is what my neighbor is attempting to do.  Which is what led to this odd inquiry.  Currently the zoning hasn't passed, but that is a separate issue... but certainly relates to this particular post.... right now it's in Fiscal Court, so no lawyers, and I hope we can figure out a way to make both parties happy. 

@Jay Hinrichs  Great point!  My water line connects to the water main and travels up the driveway.  I would imagine the previous house owners (the house burnt down in 1989) either got water from this main line, or they had a well.  The power line is in the back yard and I'm planning on burying it in this easement as well.  

I do not want to go the easement battle, but I do of course want to know exactly what property rights I have... such as the ability to exclude the land owner, or for that matter, running utilities as well.  I would have never questioned this had a District Magistrate not asked me about the possibility of the easement excluding the owner. 

@Wayne Brooks I hope to one day move to the wonderfully intense world of southern California real estate investing, and this information will certainly be of use there.  However, here in Kentucky I'm not sure perhaps even Kentucky isn't sure as maybe the issue has never been pushed in a court, so maybe there isn't a precedent.  

For anyone else who is interested, there is an interesting article on easements, and how they work.  The big key in this easement is the 'exclusivity' piece.  Here is a copy paste from the article regarding how exclusion works:  

Exclusive vs. non-exclusive easements

1. Because an easement right is non-possessory, it generally does not allow the party benefited by the easement to exclude others or to stop them from also enjoying the property. In other words, easements are generally nonexclusive.

2. However, easements can be specifically granted as exclusive easements, allowing the holder of the easement right the ability to exclude others.

I hope this is at least educational, and hopefully may benefit someone in the future... every word matters on a legal contract.

@JD Martin  I can appreciate you think you know the law in Tennessee.  I'm sure the land owner (McCormick) in California thought he did too.  Let me tell you the result of the word 'exclusive' in an easement contract:

McCormick, albeit record owner of the property, cannot now walk, ride, or access the side of the property that holds the easement. While they pay mortgage, taxes, and insurance on the property, they have no right of use whatsoever. McCormick may not have been aware that they were buying such an impaired property, but the court did not consider any hardship to McCormick its resolution of the case would create. This case underlies the importance of determining the existence and effects of all encroachments and restrictions that exist on real property before deciding to purchase, or at least attempting to predict their effects.

I copied that from the link regarding the courts decision in California to uphold an easement owners property rights. 

@Randy E.  I appreciate your perspective, and I think you are probably right.  I was just hoping to get some more educated input, which is why I posted the information regarding California and what exclusive means... this is kind of an esoteric subject, but still something I was hoping another real estate person had bumped into.