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I am fighting for property rights against a City impossed Easment.

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posted on Aug, 17 2009 @ 01:44 AM
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The Facts:

A year and a half ago my rual city of 300 people's city council decides to enforce an "easment".

I Own 3 lots of land on a corner.

City claims easement is 50 ft from center of north road and 30 feet from center of east road.

When the property was purchased there was no statement of easment.

Easment takes away over 1/3 of my property.

Houses, fences, and sheds, some not very old and some new, encroach on the easements accross town.

People throughout town use the "easement" as a driveway.

Town mayor parks 2 vehicles actually in the road at his house.

I have 2 disabled vehicles parked in front of my house.

They block no signs.

Vehicle 1 is a pick up truck my wife gave me but has a blown motor due to letting a friend borrow it. I will fix it up and get it running but have no funds to do so at this time. I have no other place to store it. It has been parked in this spot for over 4 and a half years with no complaints. It has sentimental value.

Vehicle 2 is a car that was bought for my oldest boy. He blew the motor in it shortly after I gave it to him. We parked it with no intent of fixing it. We have been looking for a buyer for it that needs parts. With the economy being the way it is we have had no luck. It has been parked there for over 1 year and a half.

Both vehicles show no sign of being abandoned. They are both assembled and on their own tires which are still inflated.

Both vehicles are parked in my "yard/grass" over 2 feet from the road.

When the city rebuilt and widened the road, the vehicles were not in the way and did not impede construction.

For over 12 years I have used this as a parking spot. My boy still does.

The town is not growing there fore has no use for an "easement".

My Opininon:

There is no legal grounds for enforcement of the easement only on certain individuals. My vehicles are not hurting anything and are not an eye sore. I am refusing to remove the vehicles. They posted stickers on my vehicles threatening fines if I do not move them. I removed the stickers and took them to city hall. I told them that the next time that they come on to my property and touch my vehicles there will be a big problem. Since then they have only corresponded by certified mail. I recieved notes threatening fines. I finally recieved tickets.

The court date is tomorrow at 6pm. I will of course plea not guilty. I will then ask for a jury trial. I am going to be representing myself and have been accumulating photos of easement violations on even the same roads.

These easements are unlawful and no one should allow a city to tell them that the city owns part of their property. I will fight this vehemently.

Any tips people? I need all of the help I can get.




posted on Aug, 17 2009 @ 02:24 AM
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Need to know which state you live in. Real estate law varies.



When the property was purchased there was no statement of easment.


Again...need to know which state you live in, but in california at least...lack of statement at time of purchase has no bearing on whether or not an easement exists. It's possible you may be able to take legal action against the title insurer for failure to disclose the easement.



My vehicles are not hurting anything and are not an eye sore.


Irrelevant.



have been accumulating photos of easement
violations on even the same roads.


I would recommend you not depend on this getting you anywhere. You don't know for certain that these other people aren't also receiving notices, and whether or not they are...it doesn't change the fact that you are. Imagine trying to get out of a speeding ticket by claiming that other people were speeding too. It's not likely to work, and the court may very well turn around and point out that your documentation of violations simply confirms your acknowledgement of your own violation. If you try to say "Oh, well it's ok for me to do this because other people are too" the court can reply with "ahh...so you ADMIT that you're doing it too, right?"



There is no legal grounds for enforcement of the
easement only on certain individuals.


There is no precedent that the state is required to enforce it on everyone they possibly can. In any case, the reason they chose you is obvious: you've the corner lot.



People throughout town use the "easement" as a driveway.


...this is the only thing that comes to mind. If you've been actively using the portion of land described as an easement openly and notoriously for 12 years, and if you've been paying taxes on the property this entire time, it's remotely possible you might be able to claim it as a prescriptive easement yourself via adverse possession.

The entire premise of an easement is that is an allowance for a third party to use property that doesn't belong to them. One of the ways an easement may be aquired is simply through open and notorious use over a number of years. For example, if your neightbor builds a fence a couple feet onto your side of a property line, if you don't do anything about it for long enough, they may acquire use of those extra few feet as an easement. As a property owner, it is your responsibility to pay attention to this sort of thing.

However...it sounds like in your case, the easement on your property is an easement in gross. As you say, 50/30 feet has been reserved in easement along the entire length of the street. It's not just you.

What I'm proposing is that you look up the number of years of regular and continuous use required in your state to acquire a prescriptive easement, and hope it's less than 12...and attempt to claim that you've been using the area as a driveway for long enough that you can claim it as an easement of your own, over the existing easement.

At least...it's a thought. I make no claims or warranties. It's just the only thing that comes to mind.

EDIT:


They posted stickers on my vehicles threatening fines if I do not move them.
I will of course plea not guilty.


...incidentally...what are you pleading not guilty to? I've assumed they've told you you can't park there at all...but after reading through a second time I'm starting to wonder if this is just a 72 hour parking ticket? If it is...I'd consider simply showing up with a property line/survey map and pictures and point out that you're parking within your own property line. The easement may be irrelevant.

[edit on 17-8-2009 by LordBucket]



posted on Aug, 17 2009 @ 02:31 AM
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I live in Oklahoma. And yes we have used it for 12 years. I was wondering if there was a case with the failure to disclose. That interests me.



posted on Aug, 17 2009 @ 02:41 AM
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reply to post by LordBucket
 


Not guilty to parking in the city easement. That is what the ticket is written out as.



posted on Aug, 17 2009 @ 02:52 AM
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Hate to tell you this, but you're going to lose. Easements are there for a reason (good reason or no good reason) and if you have vehicles parked on the easement, that impedes the ability of the city to use that easement (even if they aren't using it). It's still your property so you have the right to tell other people they can't park cars there, but since it's an easement the city has the right to remind you that you need to keep the easement clear.

Fact is, the city is probably getting complaints from your neighbors about how the vehicles are an eye sore. So the city wants to "clean up" the eye sore (because they are bored and have nothing better to do), so they ticket you.

This does 2 things: 1) Makes them $$$ 2) Makes several people around you happy

This stuff happens ALL THE TIME. Just pay the fine, move the cars and move on with life. Don't let this unfortunate episode get the best of ya!



posted on Aug, 17 2009 @ 02:54 AM
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I live in Oklahoma.


According tolawchek.net , in Oklahoma, adverse possession requires 15 years.



I was wondering if there was a case with the failure to disclose.


Sure. Lots. If you can demonstrate that the title insurer was aware of an easement and deliberately failed to notify you at time of purchase, then the charge would be fraud. Since it's an easement in gross, demonstrating awareness would probably be fairly trivial. They'd better have known about it. However...it's very likely that you were notified you at some point...buried somewhere in the 20-30 pages of fine print you probably signed at time of purchase.

In any case though, this won't help you tomorrow.



Not guilty to parking in the city easement.
That is what the ticket is written out as.


What is the easement for? What use is the city claiming?

If you don't have any other ideas, you might consider simply showing up with a property map and pictures and demonstrate that you're parking within your own property line. You might consider not mention anything to do with easements at all.



posted on Aug, 17 2009 @ 02:58 AM
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Please note that I AM NOT A LAWYER, and I don't even play one on TV.

From what I understand, an easement is the right of others to use parts of your land. There are two types. One is an easement that arises out of common use. If people cross your land, and keep doing it for years, and you don't post "No Trespassing" signs and otherwise discourage them, then after some amount of time (no clue how much time), an easement is said to exist.

The other type of easement is one in which you give your permission to someone (such as the City), or they take it from you by some judicial process.

When you bought the land, there should have been a title search to identify any easements that might have existed at the time. If it existed, then as far as I know, you're sunk. If the title company missed it, it is possible that they might be held liable, but I have no idea what that would mean. Presumably you might be able to get them to pay you for their error, but again - IANAL.

In any case, I think the city would have to show that it has an easement on your land. Do you have a copy of the title search (assuming one was done)?

Good luck with your court appearance.



posted on Aug, 17 2009 @ 03:06 AM
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reply to post by LordBucket
 


They have claimed no use at all. They just say it is there. I know it is odd. We even have trees planted there that were there before we moved in that the people befor planted.

The point is that it is MY property.

I understand also that everything you all post is personal opinion and not that of a lawyer but it is still advice or ideas that I can look into.

By pleading not guilty I should by some time. They will have to set a court date if I am not mistaken.



posted on Aug, 17 2009 @ 05:58 AM
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It's doubtful you'll find a local judge or jury willing to overturn the lawfulness of the easement. They will base their decisions on the actual law. Since the law gives the city the right of easement, and you basically acknowledge infringing on the easement, you'll most likely lose your trial. Just be prepared to fight this through appellate courts in your state. You'll need a court of appeals to overturn the law as being somehow unlawful or unconstitutional.



posted on Aug, 17 2009 @ 06:49 AM
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Good luck dealing with those crooks. My father almost had His land taken by corrupt politicians in Louisiana but He dug up so much dirt on the cock suckers that they are now behind bars. He took it as a insult and went on a crusade while many of his neighbors were dry washing their hands for easy money. The FBI especially appreciated all the evidence also and made use of alot of it.



posted on Aug, 17 2009 @ 07:10 AM
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Originally posted by LeaderOfProgress

The point is that it is MY property.




You're in America. Didnt you know there is no such thing as your property? All property is owned by the state. Sure, they might permit you to pay them rent in the form of taxes and at some point you had that lease transferred to you for a lump sum with interest but you dont own squat. The king owns it. You're just share-cropping.

It never ceases to surprise and depress me when an American assumes they own property.

Make it defensible, booby trap the whole area, be prepared to go down with the ship. Every single "property owner" is at war with the king whether they know it or not and unless your neighbors get with the program you will lose.



posted on Aug, 17 2009 @ 07:16 AM
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good luck . all they have to do is declare, and pay you a penny... welcome to America ... stay tuned the next episode, has you challenging people with a rifle in hand. welcome to America Pre 1871,
now check out the missing 13th ammendment.
read the law of 1871.
boys we have been bam boozled...

File an appeal, that will allow you to see if the 50' easement is legal. it might not be,...


[edit on 17-8-2009 by BornPatriot]



posted on Aug, 17 2009 @ 10:47 AM
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reply to post by LeaderOfProgress
 


www.usconstitution.net...

U.S. Constitution - Amendment 5

No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.



Then hand this out to the jury by having a friend dish them out to prospective jury members as they report for service.

www.fija.org...



posted on Aug, 17 2009 @ 06:37 PM
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I WON..!!!! The only concession I had to make was that I have to move the 2 vehicles about 4 ft closer to my house. This is very much still in the easement. The judge thought I had very viable arguements. Yay me.



posted on Aug, 17 2009 @ 07:28 PM
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I WON..!!!!


Congratulations.

How did it go? What was said?



posted on Aug, 17 2009 @ 07:43 PM
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It was a very informal hearing. I went in and was asked my name. I then asked who the judge who he was. He asked me what I wanted to do with this, ie guilty, not guilty, or nolo contende. I told him not guilty. He raised his eyebrows sort of in one of those "really" type of moments.

He asked the citation officer what exactly the complaint was. The officer said parking in the city easement. I then rebutted with the facts that everyone in the city uses the easement as a parking space. The judge noded his head a little. Then the officer started to say that it was a safety hazard. I contested that and gave dimensions to where the vehicles were parked and said there is no blind spot caused by the vehicles. The judge agreed that there was no blind spot. The city then tried to use the state law with junk cars. I rebutted that these are not junk cars. They appear no different than those that are driven daily. I also stated that one persons junk is anothers treasure. I then said that I can fix the vehicles and have the tags done and the title will not show that they are junk or salvage titles, therefore the vehicles do not qualify under the junk vehicle law. The judge agreed they were not junk. I then asked the city why they needed them moved. I told the judge that if they ask me to move them temporarily so as to allow the city to say work on the sewer then I gladly would but I would put them back. The judge asked the city if there was any need in moving them aside from the safety concern. The city said no. The city stated that they were not trying to get me to get rid of the cars just move them. I asked where. The city said closer to the trees. We all agreed that would only move them 4 ft. The judge gave me 2 weeks to move them over 4 ft. even thought they will still be only on the easement still. All fines and fees were waived.

Total victory if you ask me.

[edit on 17-8-2009 by LeaderOfProgress]



posted on Aug, 17 2009 @ 07:48 PM
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To prevent future problems you need to have more information.
Long time Title Searcher/Abstractor here.
Did you get Title Insurance when you purchased the property?
No Title Company will issue a policy knowing there is an easment on the property and not disclose it.
Have you ever had the property surveyed?
Do you have such survey?
Is your property a recorded plat?
Does your deed read something like, "Lots.........Block.......of Swampy Highlands Subdivision as recorded in Plat Book.......at Page......of the public records of............County, (State).
or does it have a long description that may say something like "A portion of..........being further described as follows: Beginning............thence run......feet.....etc.
How do your tax bills read?
If the description isn't complete go to the court house and get the complete description.
How is your land shown on the property appraiser's records and maps?
In some places all this info is on line.
It is here in Florida.
If it is recorded and shows this "easement"as a roadway, then it is not an easement and you do not own it.

You did not state that you have title insurance, so I could assume that you do not and that it was not mentioned on your deed.
In which case you should get a title search so that you know exactly how and why this easement was created...if indeed there is one.
If it was a dedicated street according to the plat, was it ever vacated?

If those folks using this area for a driveway have no objections, you may be able to get the easeement or street vacated so that it becomes part of your land.
You say this is a small town that is not growing, so I am also assuming that if this is a recorded plat that it is very old. You should get a copy of it so you know what the story is there.

When you have all your information you can determine whether you have a chance to get the easement or street vacated. Keep in mind that you likely will only get half of it. The other half would go that adjoining owner.
If it is an easement and wholly on your land- no problem - its yours.

You would need a lawyer to do this for you.
For adverse posession you may need a suit to quiet the title.
Don't take anything for granted. Get your info together and ssee a real estate attorney.



posted on Aug, 17 2009 @ 07:55 PM
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Star and Flag for taking it to the Man! Good on you!! I was thoroughly entertained by your story, I'm glad it ended in your favor. It's hard to fight city hall and win.



posted on Aug, 17 2009 @ 08:08 PM
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reply to post by LeaderOfProgress
 


Well, I grew up in a town of 200 people, so I have one question. Who did you piss off? A small 'city' of that size where everyone knows everybody else, there are a lot of politics to play. What I would do is find out who is behind it, and then get any 'goods' on them that I could. Environmental violations, ordinance violations, etc... Then I'd report all of them at once with supporting pictures and other evidence to the proper authorities. Everybody breaks or has broken at least one law every day. Make use of that. Destroy them, make an example of them. They will do it to you again, or do it to others so it's a moral imperative.

Even though you won the case, remember that you have only won it for now.



posted on Aug, 17 2009 @ 08:20 PM
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Originally posted by LeaderOfProgress
I WON..!!!! The only concession I had to make was that I have to move the 2 vehicles about 4 ft closer to my house. This is very much still in the easement. The judge thought I had very viable arguements. Yay me.


good job dude

+1 for freedom



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