What are a landowners rights to build with an existing versus expanded easement?

UPDATED: Jan 27, 2011

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What are a landowners rights to build with an existing versus expanded easement?

We have in the same house on an acre since 1979. We want to build a new home but the city said since we are within city limits, that we have to bring the property up to code. This means that we must make an existing easement (which is only 20 ft wide) into a road that is 50 ft right-of-way and pave 32 ft of it. Is this so, since the easement is used by 5 landowners and was written that way in the original contract of the property?

Asked on January 27, 2011 under Real Estate Law, Texas


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Yes you may have to improve upon an easement if you are looking to place new building onto property that may now violate set back issues or rights of other easement holders.  But before you begin the process, you should absolutely review your plans, survey and easement documentation recorded previously with a land use lawyer who can help you either determine if you can avoid improvement requirements, see if a variance is a viable option (i.e., hardship issues) and if you are the easement holder, if you can now end the easement. It does seem to be a bit much to pave that much of the easement, but it may be because of new zoning or planning ordinances, or simply someone's method of preventing you from improving your property.  You definitely should at least take the time to review what you have, and talk to a lawyer, even a brief consultation may help shed light on your actual situation.

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