Can You Put A Fence On A Utility Easement?

What Are Easements and How Do They Work?

A part of land that has been set aside for a certain purpose is known as an easement. Easements allow the City of Garden City or utility companies to build and maintain facilities inside designated zones.

Yes, the easement remains your own property. It does, however, impose limitations and responsibilities on you as a property owner or occupant.

Your easement possibilities are determined by the sort of easement you hold. Keep in mind that anything you put in an easement could be removed or damaged if the utility’s facilities need to be maintained. All easements must be kept up to date in compliance with the City Code.

Any form of utility may be included in a utility easement, including sanitary sewage, water, storm sewer, telephone, electric, gas, cable, and so on. The utility could be either underground or above ground.

A utility easement can be used for nearly anything that you do in your yard. You can landscape and build fences, as well as plant gardens and plants. When a Utility needs to perform repairs on their facilities, however, anything in the easement may have to be removed.

Nothing in the easement should make it difficult for a utility company to maintain or upgrade their system. Easements should not be used for anything permanent. Retaining walls, fences, sheds, and other structures fall into this category. Tree roots can damage the utility that sits beneath, making it difficult for a contractor to operate around them.

A drainage easement comes with its own set of rules. A drainage easement, unlike a utility easement, can cause property harm if it is not properly maintained. A storm water line may be buried beneath a drainage easement, or it may be the planned path for surface water to flow. Some drainage easements have streams that run through them all of the time, whereas others only have water when it rains. Some drainage easements are also designed to hold water after a rainstorm to prevent flooding in surrounding communities.

Maintain it to the best of your ability. It may be moist after rainy events if it is designed to convey surface drainage. Use a silt fence or other steps to regulate sediment and keep it out of the downstream areas if you undertake yard maintenance near the easement that disturbs the soil. Fences are strongly discouraged, and in some cases forbidden, in drainage easements because they can obstruct the natural flow of surface water. Please keep an eye out for saplings that have been planted unintentionally by nature, as well as rubbish or trash build-ups, and remove them. These can also generate obstacles, altering or blocking the natural flow of surface water, resulting in flooding.

1. Do not fill, hinder, block, or change the drainage easement with debris or rubbish.

2. Don’t build or construct improvements in the easement, such as pools, sheds, or other structures. Even non-movable temporary barriers, such as swing sets, might obstruct the flow of surface water within the easement.

3. Don’t: Change the easement’s present topography or ground surface.

4. Do not obstruct or impede storm water runoff flow inside the easement.

5. Don’t: Remove limbs, brush, grass clippings, leaves, or other similar materials from the easement. Debris can clog pipes and inlets further downstream, perhaps causing flooding, if the easement is designed to handle a substantial volume of water.

Is it legal to erect a fence around an easement?

Enclosing Easements with Fences Fences are frequently constructed along or across easements. Homeowners who do this must be prepared for the possibility that their fence will be torn down by a powerful estate (utility company, for example). A few utility companies have stated that they will try their best to reconstruct the fence as a courtesy.

Is it possible to erect a fence around a drainage easement?

A drainage easement is a portion of your land that the City has limited access to and/or usage of. In most cases, you won’t be able to make any alterations to a drainage easement. That implies there will be no fences, sheds, walls, trails, or structures. You should also avoid planting trees or doing a lot of landscaping.

A drainage easement can serve two functions. It might be required for storm water flow. Drainage ditches and creeks, for example, are usually included in a drainage easement. In this situation, anything that obstructs the flow of water, collects trash, is washed away, or creates a dam-like effect is troublesome.

The easement may also be required to gain access to drainage infrastructure. In this scenario, anything that makes driving a vehicle through or digging up an underground pipe difficult is troublesome.

Can I erect a fence near to the property line?

In most regions, fences are erected between 2 and 8 inches from the property boundary. Some regions may allow you to go right up to a property line, which is especially beneficial if you reside in an urban row house where every inch counts!

Which of the three types of easements are there?

Easements come in a variety of forms, including:

  • Easements for public utilities.
  • easements granted to individuals.
  • By necessity, easements exist, as well.
  • prescriptive easements (acquired via the usage of one’s property)

Is it possible for a property owner to obstruct an easement?

Easements are unique in that they enable some persons access to land that they do not own. An easement on your property allows certain businesses, such as utility companies, to get access to your land in the event that it is needed. There are also easements that allow driveways to be built through someone’s land in order for them to obtain access to their home or other property. This is why it’s crucial to search for easements before buying a piece of property.

While some people are unconcerned about the legal position, others may find it aggravating. The majority of the time, a property owner cannot obstruct an easement that was already included in the deed. If the property owner tries to challenge the easement’s bounds, it’s a good idea to hire a reputable local company in Guadalupe County, TX to do a property survey.

Is it possible to install a deck over an easement?

In most cases, no, because you can construct under or over it if the work would not interfere with the easement in any way. Unless your proposed work creates “substantial” or “material” interference, the owner of the land benefited by the easement cannot launch an action against you.

Is it possible to encircle a utility box with a fence?

The fence should be at least three feet away from the utility box. Also, keep a permanent fence post out of the way of the box entrance. Utility boxes are owned by ComEd. Do not paint or cover them in any way (e.g. fake rock cover).

What is a fencing easement, and how does it work?

A ‘fencing easement’ is an agreement between the owner of land (the servient land) and the neighboring property to maintain a fence or other boundary structure for the benefit of the neighboring property (the dominant land). Fencing easements are commonly referred to as a “spurious easement” or “quasi-easement” because, unlike most easements, they give the owner of the servient land the power to impose a positive obligation.

The High Court recently clarified fencing easements, especially how they can be created and whether they can run with the land, in the matter of Churston Golf Club v Haddock.

Background

Torbay Borough Council purchased land from a golf club in 1972. The terms of the property’s conveyance included a requirement that ‘the purchaser and all persons deriving title under it”maintain and forever henceforth keep in good repair at its own expense…boundary fences’ along the portions of the land that bordered a neighboring farm.

The defendant, Churston Golf Club, later leased the site. Mr Haddock, the claimant, was the tenant of the adjacent property and the successor in title to the beneficiary of the 1972 conveyance’s fence duty. Churston Golf Club and Mr Haddock had a disagreement over this fencing requirement, and it was upheld in the first instance that Churston Golf Club had an obligation to maintain the fence boundary between the club and the farm, a result that they appealed.

Appeal

The High Court had to make a decision on two issues:

  • whether it was legal to construct a fencing easement through a clause in a transaction; and
  • if the clause has such effect under its actual construction

Decision

In regards to the first problem, the High Court determined that a phrase in a transfer can generate a fence easement as a matter of law. While easements do not usually give the owner of servient land the right to impose a positive obligation, the responsibility to erect and maintain a fence that continues with the land and so affects successors in title is well-established.

The High Court cited three Court of Appeal decisions from the 1960s and 1970s that confirmed this and also provided guidance on the legal principles on which a fence easement can arise. These cases demonstrated that a fencing easement can be acquired through prescription or a lost modern grant (a legal fiction based on proving that a use or thing has been ongoing for a long time therefore creating a presumption that there must have been an express grant of this right which has since been lost).

Because a fence easement can be established by a lost contemporary grant, the High Court determined that they can also be granted expressly, such as through a conveyance. However, whether a clause in a transfer creates a fencing easement is a question of fact based on the agreement’s wording.

The High Court compared the wording of the 1972 conveyance’s fence commitment to the four elements that must be met in order for an easement to be established:

  • It is necessary to have both dominant and servient land. In this situation, the dominating property was the neighboring farm, while the golf club land was the servient property.
  • The dominant land must receive a benefit, which in this case was the benefit of the fence being installed and maintained.
  • It is not permissible for the dominating and servient land to be held or occupied by the same person.
  • As discussed in Issue One, easements must be capable of forming the subject-matter of a grant. The High Court confirmed that a fence easement could do so.

On this basis, the High Court determined that a true meaning of the clause’s wording resulted in the creation of an easement to maintain the barrier. The High Court emphasized the need to keep the fence in good repair “forever henceforth for the benefit of the adjoining land.” The parties intended for the duty to run with the land, as evidenced by this.

Conclusion

The High Court has clarified prior judgements on fencing easements and how they might be created, confirming that they can be established through an express grant. This appears to be an exception to the general rule that a positive covenant does not bind successors in title unless there is a chain of subsequent contracts. The real wording of the phrase will determine whether similar duties to create and maintain fences are likewise considered to be an easement.

Is a permit required to erect a fence around my property?

Fences are installed around the property of residences for a variety of reasons. Other reasons for fencing include safeguarding pets and young children, providing beauty to enhance a landscape, serving as a safety boundary around a swimming pool, and preventing trespassing, whether from unwanted intruders or wild animals.

If you’re thinking of putting up a fence around your property, whether it’s residential or commercial, keep in mind that depending on where you live, you might need to get a permission. Before erecting a fence, many towns and counties in New York State may need you to obtain a permit. A fence permit assures that the design, size, scale, and material of your fence are all code-compliant and approved by the municipal or local government office. Permits are required to ensure that any fence structures are safe for the public and comply with current regulations.

A permit is usually required if you add an outdoor structure, such as a fence.

However, it is very dependent on the local ordinances, zoning, and regulations.

You may not require a permission in some circumstances, but you must follow local restrictions regarding height limits and fence materials.

“Local fencing regulations regulate fence standards, such as fence height, how far an owner must set back a fence, the use of prohibited material, fence upkeep, and dangerous fences,” according to FindLaw.

In addition, private communities and neighborhoods may impose restrictions on the sort of material that a homeowner may use for a fence, as well as height restrictions, to guarantee that the neighborhood’s design is consistent.

Before you buy a fence and schedule an installation, double-check with your local government office and any community associations with which your home may be involved to confirm that the kind, size, and design of your fence comply with neighborhood laws and regulations. If you live in New York and are unsure whether your municipality requires a permission to erect a fence, contact your local town office or visit the official website of the state of New York.