When improvements abut property lines, landowners will inevitably encroach on the neighboring property when maintaining and repairing their own property. Of course a landowner can always just ask for permission to have equipment, contractors etc. go onto the neighbor’s property while conducting the repairs, but that assumes the neighbor will be reasonable and accommodating. Even if a good relationship between neighbors exists today, it could change in the future or the property may change hands and the new neighbors may not be cooperative.
If the need to encroach on the neighbor’s property will occur on any regular basis, one solution is to enter into an easement agreement for purposes of maintenance. Such easements can be simple (3-4 pages) or complex (30+ pages) as needed, based upon the needs of the property owners and the value of the improvements that are affected, and are typically recorded and run with the land. This would differ from a license agreement. License agreements are a less permanent solution, are typically not recorded, may be shorter in duration and are just between the parties to the license and their permitted assignees. Easements, unlike licenses, are insurable under the property owner’s title policy
At a minimum, every easement needs to clearly identify the parameters of the easement. For example, when a parking lot abuts against a neighbor’s fence or driveway, a simple maintenance easement that’s runs approximately 10’ along each side of the property line may suffice.
The easement agreement must also contain a formal grant of the easement right and identify the purpose of the easement, such as “the nonexclusive right, privilege and easement upon, across over and through the portion of the easement promises that is located on the [neighbor’s] property for the maintenance and repair of improvements located on the [landowner’s] property”.
Limitations on the easement would include not causing damage to the other’s property, or unreasonably impeding or impairing the neighbor’s use of its own property.
The easement term should also be addressed. Typically such easements would be perpetual unless the parties to the agreement mutually agree to terminate. However, if there are any circumstances in which either party might have legitimate reason to want the easement terminated earlier, then it should be addressed in the agreement. One example would be if the easement is unilateral, not reciprocal, and the landowner needing the easement agrees to pay for the easement right. If the landowner stops making the agreed upon payments, the easement agreement should address the neighboring landowner’s right to terminate the easement due to nonpayment.
In complex situations, where there are costly improvements that are intertwined with other property owners’ improvements, the parties may want to include more extensive obligations to maintain improvements in good repair at a specified level of quality, and to indemnify the other for damages it may cause. One example of a more complex support and encroachment easement would be the reciprocal assess and easement agreement and other related maintenance easements between the City of Cleveland and Cuyahoga County regarding the Cleveland Convention Center, the City parks located on top of the Convention Center and the property lines that run between the parks, Public Auditorium, the medical mart, and parking garages. Copies of these easement agreements are recorded in the county property records and are public documents.
Whether the potential maintenance and support issues between neighboring properties are significant or simple, recording a reciprocal easement agreement may be the most viable lasting solution.