All Forum Posts by: Joshua Hardy

@JD Martin  I'm not asking an attorney to offer pro-bono advice.  I'm posting on a Real estate investing forum asking for other real estate investors for advice... isn't that what this thing is for?   I'm not trying to ban the owner from the property, simply just not my driveway.  He wants to use part of the driveway for his commercial business.... but that isn't the point.  Right now I'm trying to figure out what exactly I OWN.  Remember I OWN the easement.  Just trying to figure out what exactly that entails.  Thanks for your help.

@Jeff B.  "The grantor OWNS the property, the grantee(and only the grantee) is being given right to traverse. For the owner to be excluded would require a tranfer of ownership for that portion IN MY OPINION."

Your opinion isn't what counts unfortunately, but the courts have ruled on this in California: http://blog.aklandlaw.com/2008/12/articles/easements-1/keep-your-hooves-off-my-easement-exclusive-easement-prevents-servient-landowner-from-using-driveway/

@Bill Gulley  I have spent quite a bit of time googling information about easements prior to posting here on bigger pockets.  I don't want to keep the neighbor off his driveway, he doesn't have a driveway the driveway is mine via easement not title.  

@JD Martin The idea behind an easement is to allow for use without having to actually 'buy the land'.  I own a property right with the land.  Just not the title.  If you read the article I posted about exclusive easements in California, you would see that in some States an exclusive easement does prevent the land owner from accessing the land that the easement owner has.  I'll relink for you: http://blog.aklandlaw.com/2008/12/articles/easemen...

Perhaps I should have mentioned something else mentioned in the easement contract (which is recorded at the county clerks office).  Further down the contract it states:  

It is specifically agreed upon and understood by and between the parties hereto that the Grantee herein shall be responsible for the maintenance and upkeep of the right of way area granted herein.

I am the Grantee, I not only have an exclusive easement, but also have an obligation (just not a tax obligation).  Basically his land is burdened by my easement.  

I really want to know what the word 'exclusive' means in this jurisdiction.  In California it's better than ownership apparently!

@Pavel Reyes Valdes  I can appreciate that you were once an attorney in another country, however the word idea of an exclusive easement may mean different things in different jurisdictions.  For instance, in the article I referenced previously in California an exclusive easement does prevent the land owner from using it, and only the owner of the easement has access over that area of land.  I will link to it again here:  http://blog.aklandlaw.com/2008/12/articles/easements-1/keep-your-hooves-off-my-easement-exclusive-easement-prevents-servient-landowner-from-using-driveway/

I own an exclusive easement to get to my property (which is an island, or an enclave since it's not surrounded by water) this easement is the driveway from the highway to my land.  It goes through about 350 feet long, and the width to allow one way traffic (and a concrete truck has been through), so maybe 10-12 feet wide.

I have read about California and how they had a similar case come up. Now my easement actually has these words:  

That for and in consideration of the sum of ONE DOLLAR ($1.00), and other good and valuable consideration, the receipt of which is hereby acknowledged, the Grantors do hereby bargain, sell, and convey unto the Grantee, his heirs or assigns, an exclusive right of way easement over the lands of the Grantors and specifically over the driveway of the Grantors for the purpose of ingress and egress, which property is the same conveyed to ....

I embolden the exclusive right of way portion, because that portion is what I'm curious about.  Does that word 'exclusive' apply in the normal way, does it mean that I can exclude the land owner from using the driveway?  

I'm sure I'll need to hire a real estate attorney if this does end up in a legal battle, but before I go through the expense I wanted to touch base with you all first.  Perhaps there are some Kentucky attorneys who can shed a little bit of light on the idea of an exclusive right of way.  

Thank you all in advance.

@Kyle Kingma Thank you very much for your input.  I figured it was bad planning to have a residential driveway be shared with a commercial entity.  I really thought it was odd that the planning commission would have even moved forward on this.  I think they may have done it primarily because I wasn't at the Future land Use map amendment hearing... which is the first step in re-zoning.  

What do you mean negotiate a 'flag lot'? What is a flag lot? The DOT is probably going to deny him due to the fact that there isn't 500 feet of line of site for a new driveway towards the west of the existing driveway, which is what he would need.

Around me is other residential and ag zone, not much commercial at all, however there is one other commercial zone within 500 feet, and then one more about 2000 feet away.   The future land use map had to be amended, it was agriculture, however he had a public hearing that i didn't attend, this was the first step to the re-zoning.  

@Ralph R. When it's raining gravy it's better to get a barrel than a fork... nice!  I have considered re-zoning our property commercial as well, however the issue is that I want to live here on this property.  But things being what they are, perhaps I'll have to make that decision sooner rather than later.  In Kentucky you can not be land locked.  I'm sorry you had so much difficulty with getting your property.

@Mike Cumbie That's not a bad idea about buying the land which the driveway sits on.  However, the problem is that land is part of the rezoning request.  

@James Mc Ree Thank you for my defense.  You are correct.  The land is not borrowed, I am not 'asking' permission.  I own the ability to utilize the land, and have a responsibility... just not a tax burden.

I also agree, and didn't realize till now.  This isn't really just a re-zoning issue, but yes a land development issue.  Of course those often go hand in hand. 

I just got off the phone with the owner of the 23 acres, either he or a friend of his is a fan of bigger pockets, or someone from the fiscal court meeting told him about the meeting this morning.  We talked about his land, I offered 75K so he could make some money after he bought it for 68K and then costs associated with rezoning requests, and surveyors.  He said he wouldn't do 75K, no way.  He countered with 150K.  Which is crazy, and I wouldn't be able to even think about financing, nor would I consider trying at that price.  Of course I'm a motivated buyer, but that far exceeds my means.  I explained I wouldn't be able to do that, and offered my piece to him for 65K, I told him I was ashamed of the price, but would have to be high due to the sentimental value, and us not wanting to sell, but felt like I should give a price.  He wasn't interested in that.  So we are going to see what the KY department of transportation says about putting the secondary access point.  I really do hope they grant an access point, and that it is far away from the existing, however my primary concern is that they will deny the request, and be stuck sharing atleast part of the driveway, possibly the whole thing!  I would not want this at all.

@Thomas S.  You don't think I should try to fight the re-zoning?  The house I'm building is actually going to be my own.  

I would never try to finish construction and sell to unknowing buyers.  That's pretty shady man, I'm surprised you suggested it.  

Right now I'm thinking I'm going to put together a case to object, and hope that the Fiscal court will rule in my favor.  I'm hopeful they will, but if they don't it will hurt the relationship between my neighbor and myself, and he could still get his request.  I'm going to first offer to buy his property one more time.