What about the guy in this story who destroyed over 500 trees so that he would have a better view of the Las Vegas strip? Fortunately he was caught and convicted. He now faces up to 35 years in prison.

Unbelievable! Here's a link to the full article, although you may have to create a log-in and password to view it (not sure).

Here is a link that might be useful: Lake Forest sidewalk

Wow! What arrogance. It might be fun to see the rest of the neighborhood band together and lay down cheap pavers to restore the sidewalk. Great way to establish your family in a new neighborhood.

This doesn't make sense. A utility easement is for utility use only. It doesn't give the town the right to pave a sidwalk or allow trespassers onto the land. A utility easement for for utility use only. Based on the article, the newcomers own the land beneath the sidewalk and the utility has an easement. The issue is whether the town has a ROW. The newcomers claim there is no recorded public right of way. The town claims there is.

Seems pretty easy to resolve. Do a property search of the newcomers address. Is there a public ROW recorded or not? The town may have only noted it on subdivion plans. That may not be enough. The fact that the town is willing to make it narrower and screen it makes me think they didn't properly record it and they know it.

As sue36 points out, this shuld be easily determined about the "right" to have the walkway..The easement for the utility does not grant access for an ingress/egress easement..This would have to be duly noted on the easement legal description,particularly if the easement is on the land of the homeowner,not township land.Even if it is on township land, the easement is for "utilities" not access..

The homeowners' biggest problem in this case is that they brought the property knowing the sidewalk was there. Just because they changed their minds about it after they lived there for a while doesn't automatically give them the right to rip it up.

BTW -- easements don't necessarily have to be recorded. This could well be a prescriptive easement because people had openly been using this sidewalk for 20 years to access the park. In fact, the Kunz's should have wondered what the sidewalk was doing there if it wasn't for the public to use. Wouldn't you have checked this out if you had been interested in the property?

At a minimum, they should have gotten a legal opinion before they went and had it ripped out. I'd call what they did incredibly arrogant. Since they knew or should have known that the public was using the sidewalk that ran across their property when they bought it, they may well be stuck with it, as well as stuck with the bill for restoring it. If I were a taxpayer in that town, I sure wouldn't want to pay for it.

arrogant? absolutely!!! That concept of "adverse possession", or prescrptive easement, is actually difficult to win in court, as a former land surveyor, i have seen very,very few claims that win in court, so these homeowners have that going for them...In their defense, perhaps? they didn't realize the sidewalk was actually on their property,but that still doesn't excuse their resulting actions

qdognj

Prescriptive easement and adverse possession aren't at all the same thing. True adverse possession cases (which actually involve an adverse claim of ownership) are rare. OTOH, prescriptive easements (in which everyone agrees the property owner still owns the land in question, however burdened by easement) are pretty common. Most typically, they involve fences that encroach on the neighbor's property.

A defense that claimed not to know that the sidewalk was on the owner's property probably wouldn't fly. In generally, property buyers are expected to know the boundaries of land they buy. If there's any question, they hire gentleman such as yourself to survey it. A survey would tell them whether the sidewalk was on the property in question.

If the easement actually was recorded, than the title company should have caught it. In that case, the Kutzs may have a claim against their title company.

In any case, the bottom line is that the legal system doesn't favor property owners who take the law into their own hands, and that's exactly what these people did.

true, i stand corrected..I quickly read the post, and misunderstood.
What i have found surprising, is that property surveys are not needed to buy/close on a house..In Northern Nj, it was a must..Having moved to PA it is extremely rare, and isn't required...
In NJ , what you refer to as prescriptive easements, are described in the deed by metes and bounds, as to the type of easement,for example, ingress/egress easement, utility easement,sanitary sewer or storm water easement..This would also preclude the easement from being used for anything by the deeded use...FWIW, i am now retired from surveying ;)

Oooh! Thanks for all the legal thoughts on this! There are several such pathways in the city that are just walking and biking paths, winding along through housing (mostly housing less than 30 years old). The one in question has a definite purpose of providing safe access to a park and school. The city plows these just like it does the streets and ordinary, front-of-houses-parkway sidewalks. It will be interesting to see how this plays out.

terriks -- When I read about the Vegas tree-topper I immediately thought of a former local resident, Mr. T. After he cut down almost every tree on an historic 7-acre property, the city passed a strict tree ordinance. Woe unto ye who would remove any tree over 1 1/2 inches diameter! Gotta get the OK from the city forester, and that's not easy.

I had a chuckle over that one, because I WISH the city maintained the sidewalks in front of the houses I own in town. They are for public access, but I bear the expense of their upkeep and repair and if the property owners fail to do this, it's done by the city and then put on the house's taxes.

This I think is the killer clause in the article garysgirl linked to:

"Lake Forest originally approved the subdivision plans with the stipulation that the sidewalk to the park be built over the public utility easement beneath it, Rummel said."

If this is true, then whomever owned and developed the ground in the first place accepted this as a condition of approval to even go forth with their building. If it doesn't show on a deed, but if Lake Forest can cough up that contingency clause in writing.........it ought to be an interesting court case to follow as they duke it out. It would certainly not be like the authorities just took it upon themselves to interlope on a utility easement. It looks like they crossed their T's and dotted their I's before the fact if what they say is true and they can prove it. If it's not on the property deed, then somebody failed to provide a good property description when the ground was modified, and that's not up to the authorities to implement that, but the developer who is selling the plots, no?

I would hope it is all documented in a legal fashion.If i was the homeowner, and it isn't legally documented by deed, i'd have a real problem with it..Who is legally responsible if someone falls and breaks an ankle on the walkway? The owner of the property? Or the township who stipulated a walkway was to be built on the utility easement?....If i were the homeowner, and was responsible for any injury and subsequent lawsuit, i'd rip the walk out also

"If it doesn't show on a deed, but if Lake Forest can cough up that contingency clause in writing.........it ought to be an interesting court case to follow as they duke it out."

We own property that has a restriction on it, required by the town when the subdivision was created. It was added to our deed and plot plan and was easily discoverable when we searched. The town may very well have voiced a requirement but not followed through. If it wasn't properly recorded then it might as well not exist. But they still get to fight over prescriptive easement, of course.

That's why I phrased my last sentence as a question. Who's responsibility is it, when land is subdivided to have a proper survey, plat and physical/legal description done prior to resell? In what way could the city have "followed through" other than to check the legals on the descriptions submitted by the developer for recording? Who was responsible for adding those restrictions to your deed and plot plan?

I don't see how they think that removing the sidewalk is going to prevent people from using their accustomed path to and from the park.

It'll just be a muddy and ill-defined path, and of course one could argue that it's much more likely someone will slip and fall and sue the homeowner than when there was nice, even pavement there.

As for the tree-chopper, a similar thing happened in my Queens neighborhood several years ago. This time it was a billboard owner that chopped down several city-owned trees (took them all the way to the ground, in fact) because they were 'blocking' pedestrians' view of the billboards!

They got in trouble for that, but I'm not sure the trees were ever replanted. Imo, the billboards should have been ripped down as part of the punishment. Remove the incentive--and payoff--for the destruction.

qdognj

Whether or not the sidewalk easement is "legally recorded" isn't the end of the story. Prescriptive easements are a type of implied easement and do not appear on deeds. They are created by open, continuous and adverse use over a period of years that varies depending on the jurisdiction. If a court finds all of these factual elements are true, it will enforce a prescriptive easement.

According to the news report, the sidewalk was close enough to the homeowners' front window that they were afraid sidewalk users would spy on them through the window. So it would be very hard for them to argue that they didn't know about the sidewalk or didn't realize it was on their property. Actually, the story says they "changed their mind" about having it on their property.

"adverse"

That, IMO, will be the key. If the previous owners allowed it with permission, then it wasn't adverse. I don't think the Kunz's have owned the property long enough to establish an easement based on their timing alone.

I actually have no sympathy for the town in this situation, assuming they didn't ensure they ROW was recorded. If they want a restriction then it is their responsibilty to ensure it is properly recorded. Additionally, they should have sought a ROW from the developer. They should have requested the land be transferred to an open space organization or to the town. The homeowners should not have to bear the liability or pay the taxes on this.

I am also surprised they put a sidewalk over a utility easement. That wouldn't be allowed where I am.

Thursday is the day our local 'newspaper' comes out. Guess what isn't covered in it? (This is why we no longer subscribe -- well, ONE of the reasons.)

sue36

That's not how easements work If one already exists, then new owners take the property so burdened with the easement. By buying a property with an existing easement, they are considered to have given their implied consent to its continued existence. They have no right to withdraw it after they own the property. The most they can do is to start a legal proceeding to try to have it extinguished.

Any easement is "adverse" to the owner's interest because it always diminishes the owner's right to control use of the property. But sometimes owners do consent, in which case the easement so granted isn't a prescriptive easement at all. The city is claiming that the developer granted the city an easement to build the sidewalk over the utility easement. This will be difficult to prove without some kind of writing, but the absence of it being recorded on the deed (assuming that's the case) wouldn't be determinative.

If the city can't show something in writing, then it may have to rely on a claim of prescriptive easement. There are a lot of factual issues involved in proving such a claim. What the success of this claim would be likely to hinge on, IMHO, is the length of time the sidewalk has been used by the public. It takes 20 years of use in Illinois to create a prescriptive easement.

At this point there is just an alleged easement. The town is claiming they have a recorded ROW (a type of easement) and the homeowner is claiming they do not. Since determining if there is a recorded ROW is pretty straight forward, the town must have noted it in the subdivision plans (if that much) but never ensured it was recorded for the affected property. Even if the town wants to claim a prescriptive easement (which they haven't, from what I have read) they need to prove it.

If you buy property and your neighbor is infringing, do you just merrily agree you will give it to them or let them continue using it? No, of course not. You probably bar them from using it and then someone sues.