Not a lawyer and would never presume to give legal advice. I’ve been witness to two property disputes. In one of them my friend was reluctant to get lawyered up. That cost him plenty.
Get lawyered up
So you’re putting in an exact replacement? Why exactly does the neighbor object to that?
I’m assuming this is a properly recorded easement. Who is the easement for? Is it a utility easement? Can you describe the easement a little more?
Ok, I am wondering about your choice of words. If the neighbor is protesting, is it because he is using it for “unintended” uses.
I guess I am asking, “what’s his problem!”
I live in Indiana and am not a lawyer. My understanding is that you can replace the fence, but if they need to dig there, you may have to pay for the replacement. They will be under no obligation to do so.
Place it in the hands of an attorney, PLEASE! I hesitated and was nearly defrauded of a good deal of property until I smelled a rat and consulted a lawyer. The neighbor who tried it had the gall to tell me “I’m an attorney and it doesn’t say that.” He wasn’t, and it did.
What is the neighbors objection? It is probably cheaper to work things out directly instead of paying for a lawyer. Once you get adversarial, only the lawyers win.
Why would your neighbor object,is he looking to encroach on your property if the fence is removed?
unless you want to do it twice. hire a surveyor
If the neighbor won't heed common sense, the next step is a lawyer.
Do you have a current survey of the property? It will usually show easements. Info could possibly be found in your deed to the property as well.
Try talking to a lawyer. Seriously.
It depends on your state, the terms of the easement, how the easement was created, and use of the easement since it was created.
For example, here in Texas, you can have an express easement (generally created by an instrument in writing), an implied easement or easement by necessity (which can be created if the property was subdivided from another property that needs to cross your property to get to the road), or an easement by use or adverse possession (which can be created by trespassing over someone else’s land for a sufficient number of years). Each has its own rights.
You can also change the rights under an easement by how it is used. For example, you could have an express easement that is 50 feet wide and if the owner of the land puts up a fence with a 25 foot wide gate and you don’t object then the land owner could basically cut 25 feet off of the width of your easement by adverse possession.
It is a very complicated question which is why you can’t find a simple answer on the interweb.
Can I replace a fence that is on my property
Yes as long as it does not interfere with the easement, it is YOUR FENCE. But wouldn’t it be easier to Just Beat the Neighbor up, poison his dog and Replace the fence anyway, then sue him for emotional distress for the badgering he gave you about the easement.
As others have advised here you need a local real estate attorney to opine on whether the nature of the property and the purposes of the easement are satisfied with reasonably located gating.
What is the reason for the neighbor who uses the easement to object? He has use of the easement, so long as he is not impeded there should not be any issue as it remains your property. Has he been maintaining the area of the easement, mowing, landscaping, gravel or pavement? If yes, for how long?
Please don’t take the above as legal advice, just think it through for yourself, and answer if you’re comfortable doing so.
1) How was the easement created - deed, prior use, other?
2) Who was the the beneficiary of the easement - government, utility, adjacent property.
3) What was there, if anything, before the fence?
Take that info and the related documents to a local real estate attorney, and you should be able to fairly quickly get an answer.
Ingress/egress easements run with the title. The specific easement boundaries should be spelled out in your warranty deed. It should also be shown on the property survey. As long as the fence does not encroach on ingress/egress right of way you should be fine. The fact that the fence has already been there for a long time also sets precedence. Just because your neighbor objects does not automatically mean you can’t replace the fence. That’s why you need to dig out the warranty deed and survey. If its a 10 ft driveway easement or something like that then as long as the driveway is open the fence on your property should be hour business.
Need help on links to the law?
A lawyer really is helpful for many though you can do it yourself with some knowledge.
See here...Parcel Mapping Information Delaware County, Indiana