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MISCONCEPTIONS IN NEGOTIATING PIPELINE EASEMENTS

This has been the year of misconception about negotiating with pipeline companies. It is no secret Pennsylvania in the past few years has become a hotbed for pipeline companies.  Many Pennsylvania residents until a few years ago had never heard of the term “Eminent Domain.”  They were not aware there was a concept in the law where a private pipeline company could forcibly come onto their property with condemnation power.

THE CREATORS OF THE CONFUSION

With the growth of the Marcellus Shale play and the related pipeline companies, came Easement Agreements, Land Men and attorneys (knowledgeable and not so knowledgeable) and several wonderful nonprofit organizations.  Confused homeowners are bombarded with information from all parties, and all sides, each purporting to have experience with what a homeowner can and cannot do with regards to negotiating with these new invaders of the republic.

PROPERTY OWNERS LOST IN THE PROCESS 

From the chaos of the fighting between Right of Way Agents (called Land Men) representing the pipeline companies, the attorneys, and the nonprofits, many homeowners report feeling they have become lost.  Many feel they have been misguided and, more sadly, suffered terrible, irreparable and preventable changes to their property.  This includes the loss of sound and visual buffers, as their trees were cut down and their stone walls, lawns, gardens, and landscaping are torn apart.

WHAT WE DO

We regularly negotiate Pipeline Easement Agreements for property owners – both commercial and residential.  A key component in these negotiations has been to bypass the “whisper down the alley” approach used by many and to work directly with the decision maker as opposed to a mere outside agent.  The approach of our firm is always, “what is best for the individual homeowner”.

We sit down with each individual property owner and list their individual concerns.  We make sure our modifications to the proposed easement agreement by the pipeline company include and address each one of the homeowner’s concerns.  In addition, we address technical legal issues which are critically important, but not often considered by property owners.

We do not believe in taking financial advantage of the homeowner during this difficult and confusing time.  Our objective has always been and remains to shift the costs of the negotiation process.  That means finalizing the easement and transferring the responsibility for attorney’s fees and costs associated therewith to the party that should rightfully incur the obligation, the pipeline company.  After all, why should the property owner be penalized any further?  It is not their fault that the pipeline chose their property for their pipeline?

THE GREAT MISCONCEPTIONS

That being said, let’s clarify something:  THE EASEMENT AGREEMENTS OF THE PIPELINE COMPANIES ABSOLUTELY CAN BE MODIFIED and THE AMOUNT PROPOSED BY THE PIPELINE COMPANY ABSOLUTELY CAN BE NEGOTIATED.  Remember the pipeline’s first offer is never their final offer.  If you have been informed by anyone that you must accept the terms of the pipeline company as given and/or that the easement agreement cannot be negotiated, THIS IS ABSOLUTELY NOT TRUE.  If you are told you must sign in 72 hours, that is also not true.

BUT I WANT TO FIGHT

What if you want to take a position fighting the pipeline?  Should you just abandon any attempt at improving the terms of your own easement agreement?   Of course not.    Although we do not officially take either a favorable or negative stance on the construction of pipelines in Pennsylvania, we have had several clients negotiate and secure protections for their property, while continuing to take leading positions in the fight against the pipeline companies.

Pay attention to the Adelphia Gateway Pipeline.  The Land Men suggest they only want a small correction to the easement.  In truth they want the property owners to agree to a use (transportation of explosive gas) not permitted in the currently recorded easements.

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Neighbors Trees and Bushes at Property Lines

One of the most common points of dispute between neighbors comes from the growth of trees, shrubbery, and bushes.  The planting of an acorn five feet from a property border may be meaningless in the life of the planter.  However, as that tree grows several problems often arise. 6365071347_8881ef5bed

1.  The neighbor, who used to enjoy sitting in the sun in his or her backyard, or at a pool, does not appreciate shade for most of the day.

2.  The neighbor does not appreciate that branches from the tree have grown over into his or her yard, rubbing against the roof and dropping leaves, branches and debris.

3.  A storm causes large branches to drop damaging items in the yard, or perhaps the house.  The neighbor fears for the safety of his or her family.

4.  The neighbor’s view has been obstructed.

How are these issues resolved?  What do the Courts say?

I will address the following:

 

  1. Do trees support adverse possession claims?
  2. Can you cut a neighbors branches, roots or trunk?

1.     Do trees support adverse possession claims?    Here is the fast answer—-NO.

In a footnote to a Superior Court decision (Jones v. Wagner, 425 Pa. Super. 102, 624 A.2d 166 (1993)) the Court noted it might be possible to have a prescriptive easement for tree limbs after 21 years.  A prescriptive easement is like adverse possession, except title to the land cannot be claimed, only a right to use the land.

In 2004, the same Court held that no prescriptive easements are acquired by the growth of tree branches or roots which encroach onto a neighbor’s property.  The Court based its reasoning on the concept that the growth of trees cannot notify a landowner of a claim to the use of the ground and because  the “potential of widespread uncertainty occasioned by such easements convinces us that they should not be recognized as a matter of public policy.”  Koresko v. Farley,  2004 Pa. Cmwlth , 844 A. 2d 607 (2004). This was an appeal from a decision of a Chester County Judge (Robert Shenkin), who had also said no prescriptive easement arises by the growth of trees.

 2.    Can you cut a neighbors branches, roots or trunk?   Again, here is the fast answer…..YES

Because tree branches do not acquire prescriptive rights (see  section A above),  they are trespassers.  They may be removed, BUT not without risk.  First of all imagine a large oak growing over the property line.  Then imagine your surveyor properly locates the boundary and you set up one of those rotating red lasers on the line.  At night, with the laser spinning and marking the edge of the property, you climb into a bucket truck and cut all the branches at a point 2 inches on your side of the line.  You get out of the truck and go to bed thinking you are home free. The tree now has large, heavy branches on your neighbor’s side and little stubs that go 2 inches onto your side of the boundary.  Your neighbor comes out in the morning and is furious (Oops… maybe you should have given advance notice of your plans).  It takes three or four weeks for your neighbor to get a surveyor out, but when the surveyor arrives, the weight of the lopsided tree has cause it to bend significantly away from your property.  Your neat straight vertical line of cuts are now an angled line with the top located 3 feet onto your neighbor’s property.  His arborist claims the cuts will be fatal and that the tree was worth $75,000.

A landowner may use self-help to remove encroaching tree limbs (so long as he does not trespass on the neighbor’s property), and thereafter recover his reasonable expenses from the trespasser.  The landowner will not be held responsible for any resultant damage to the trees.  In the alternative, the landowner may seek injunctive relief, together with incidental and consequential damages.  Jones v. Wagner, 425 Pa. Super. 102, 624 A.2d 166 (1993) (Note:  In a footnote, the court notes that it may be possible to have a prescriptive easement for the tree limbs after 21 years… )

However, the Superior Court recently held that no prescriptive easements are acquired by the growth of tree branches or roots which encroach onto a neighbor’s property.  The Court based its reasoning on the concept that the growth of trees cannot notify a landowner of a claim to the use of the ground and because of the “potential of widespread uncertainty occasioned by such easements convinces us that they should not be recognized as a matter of public policy.”  Koresko v. Farley,  2004 Pa. Cmwlth , 844 A. 2d 607 (2004).