They found that the easement was specific enough in stating the particular uses and the particular area burdened. The Court held that an easement for a broad grant of right of way use is limited only by its reasonable use based upon the scope set forth in the written agreement and not its historical use through the parties’ course of conduct. Since he had recently purchased the property, Saville did not have a reason to know of this landscaping use limitation based upon the plain language of the easement. The new owner of the property which benefited from the easement (Saville) argued that the easement clearly provided for access, ingress and egress and Saville had purchased the property relying on such right for construction of his home. The owner of the property burdened by the easement (Zissler) alleged that the easement was always used solely for landscaping purposes regardless of the language of the easement and should be limited to such use on an ongoing basis. The easement provided “Grantee access, ingress and egress to vehicles and pedestrians over Grantor’s real property to Grantee’s real property.” The easement further specified the exact dimensions of the easement area for which such use rights existed. In Zissler, two neighbors brought actions against the other to confirm the scope of a recorded easement affecting both of their properties. Saville addressed these issues and confirmed what a “bona fide purchaser” may be subject to due to a course of conduct by the parties. PLEASE do not contact me directly I am NOT accepting new clients at this time, and only volunteer here on AVVO to "give back" after a long and prosperous career.What happens when an easement agreement does not specifically state all of the purposes for which it may be used? How do we know what the parties intended? If not specifically stated, is the scope of the easement based upon its historical use or a reasonable use? A recent case of Zissler v. They are NOT intended as legal advice, nor to be relied upon by anyone, for any reason, nor to create an attorney-client relationship between you and I and all askers should consult an attorney for advice regarding each individual matter, since each case is a bit different, and not all information is typically recited in the online question as posted. Responses provided herein are merely commentary on the question posed. Consult a good local real estate lawyer for a more thorough explanation. You could try arguing 'waiver ' but it is very difficult to claim waiver - by word or deed - as against a covenant (or easement) that is recorded and runs with the land. Since the intent of the "original grantor" is all that really counts, the fact that they have permitted you to "repair it in the past," is not likely to be determinative. I had an appeal a few years back, in which to determine the grantor's intent (some 50 years ago), we had to call witnesses from that 'hood - who were NOW in their 70s to try and recall factual events (that actually were incurred their PARENTS, when they were CHILDREN growing up in the 'hood back in the '60s. As stated, it is the intent of the original grantor control, and this can be difficult to determine this is particularly true when the easement doesn't contain language to assist in the judge in figuring out what the ORIGINAL grantor intended - especially if the granted easement arises way back in the recorded history of the properties' titles. There's no one unequivocal general answer here each case stands on it own facts and merits so, in a case where the intent was to create access on a dirt path, a judge might not permit the dominant estate holder to lay down gravel (even if it made access better) if the intent was to have gravel they might be able to pour a concrete or asphalt driveway. Thus, whatever "maintenance" the dominant estate holder seeks to perform here would have to serve the stated purpose, and no other concern - and if there is no specific details - be "reasonable" - and must in no way interfere with, nor "burden," the subservient estate's ownership rights. The dominant estate has a duty to MAINTAIN the easement for the purposes IT IS INTENDED. No way to answer on line the answer is in the language/intent of the easement.
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