Who should be responsible for costs for replacing a structure built on an easement?

UPDATED: Jan 24, 2011

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Who should be responsible for costs for replacing a structure built on an easement?

I had a kennel built in a corner of my recently purchased home. I expressed concerns to the contractor that several feet of the back yard seemed to be part of a drainage and that I would rather have it in another spot rather than have to dig it up later. He put a pipe in the foundation and said it should be fine. A few days later he called me saying that it was built on an easement(which he didn’t know about even though he built the fence connected to mine) and if it had to be removed he would replace it at an extra cost. I later found the easement in the paperwork after seeking advice.

Asked on January 24, 2011 under Real Estate Law, Arkansas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

IF you had told the contractor not to do the work and he had done it anyway, he would be responsible. However, if you approved his going forward with the work, then unless he was negligent in not knowing about the easement, you, as homeowner, would be responsible for the cost. A contractor is not ordinarily responsible for knowing about easements--they do not due title searches, check deeds, etc. typically, but instead rely on the homeowner(s) to know what can be built, where. If there are facts that suggest in this case the contractor should in fact have known (possibly if he had to file for some approvals, which might have given him the opportunity to find out about the easement), then it may be you can hold him liable; otherwise, it is your responsibility. The fact he built the fence would not be enough, by itself, usually.

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