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Posted: 7/19/2021 10:18:19 AM EDT
We live on land bought from my cousin years ago, he has one 40 acre field next to our 2 acres.
We have been using his field access road to access the hard surface road for years.
He said we could get legal right of way.
Now that we're older it occurred to us . . . we might die, he might die too.
In that case our daughter may have right of way problem.
Do we need to get a survey and hire a lawyer or what?
Can we just go to the courthouse and him give us right of way ourselves?
Does anyone know about right of ways?

Thanks!
Link Posted: 7/19/2021 10:25:38 AM EDT
Originally Posted By RV-1:
We live on land bought from my cousin years ago, he has one 40 acre field next to our 2 acres.
We have been using his field access road to access the hard surface road for years.
He said we could get legal right of way.
Now that we're older it occurred to us . . . we might die, he might die too.
In that case our daughter may have right of way problem.
Do we need to get a survey and hire a lawyer or what?
Can we just go to the courthouse and him give us right of way ourselves?
Does anyone know about right of ways?

Thanks!
View Quote


I'm not sure what help a lawyer will be for a competent person, but you need a certified spatial designation for the agreement.
Link Posted: 7/19/2021 10:29:17 AM EDT
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Originally Posted By Panta_Rei:


I'm not sure what help a lawyer will be for a competent person, but you need a certified spatial designation for the agreement.
View Quote


You mean a map of property, ours next to his and road in between?
Link Posted: 7/19/2021 10:41:20 AM EDT
Sounds like a question for an attorney. There could be existing "deeded" ingress/egress rights within the chain of title to the property and would be listed in a title report, provided that the title report has a sufficient search period. A land surveyor could locate the existing driveway with respect to the property boundaries and boundaries of existing deeded access rights. Access rights can be acquired through continued use over a certain period, which requires an attorney to interpret and provide advice. Creating a new deeded access right generally requires an attorney to draft a deed of easement, a land surveyor to create the easement plat, and last, but not least, a property owner willing to grant the right.
Link Posted: 7/19/2021 11:08:14 AM EDT
Thanks!

I went to courthouse, clerk gave me maps of all land around me.
Guess I need to take them to a lawyer, huh?

Oh, you may not know this answer . . . another neighbor has been around here forever (family goes back like 300 years) he was telling me that we have what is called a "Mechanical Right of Way" that means we've been using it so long it is recognized as legal. However, should we stop using it for 7 years then we lose the right to use it.

Have you ever heard of this in Virginia?

You sound like you know quite a bit about surveys.
Link Posted: 7/19/2021 11:29:19 AM EDT
There are many different ways to acquire rights of access and again, an attorney is the only one qualified to give advice with respect to those matters. There are prescriptive easements, implied easements, express grants, etc., and there are also specific means by which those rights could be extinguished.

If it were me, I would want to memorialize those rights through an instrument recorded at the courthouse. I would want to use a deed of easement prepared by an attorney together with a plat prepared by a land surveyor and would have the deed signed by the landowner.
Link Posted: 7/19/2021 11:34:31 AM EDT
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By olson04:
Sounds like a question for an attorney. There could be existing "deeded" ingress/egress rights within the chain of title to the property and would be listed in a title report, provided that the title report has a sufficient search period. A land surveyor could locate the existing driveway with respect to the property boundaries and boundaries of existing deeded access rights. Access rights can be acquired through continued use over a certain period, which requires an attorney to interpret and provide advice. Creating a new deeded access right generally requires an attorney to draft a deed of easement, a land surveyor to create the easement plat, and last, but not least, a property owner willing to grant the right.
View Quote


Ah, the American way.....insert attorneys into everything.  They can screw you with this.   The property I bought has a 100' wide easement for a gravel driveway the entire length of the East side.  The gravel road is not properly maintained and is eroding into my pond and I have to freakin pay taxes on an acre of land I don't have much right to.  Why wouldn't you just carve out said land since it's all edge and keep it simple?  Because attorneys!
Link Posted: 7/19/2021 11:35:31 AM EDT
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By olson04:
There are many different ways to acquire rights of access and again, an attorney is the only one qualified to give advice with respect to those matters. There are prescriptive easements, implied easements, express grants, etc., and there are also specific means by which those rights could be extinguished.

If it were me, I would want to memorialize those rights through an instrument recorded at the courthouse. I would want to use a deed of easement prepared by an attorney together with a plat prepared by a land surveyor and would have the deed signed by the landowner.
View Quote


I think you are correct and that we will do . . .  BEFORE one of us dies! Thanks!
Link Posted: 7/19/2021 11:39:54 AM EDT
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Originally Posted By Panta_Rei:


Ah, the American way.....insert attorneys into everything.  They can screw you with this.   The property I bought has a 100' wide easement for a gravel driveway the entire length of the East side.  The gravel road is not properly maintained and is eroding into my pond and I have to freakin pay taxes on an acre of land I don't have much right to.  Why wouldn't you just carve out said land since it's all edge and keep it simple?  Because attorneys!
View Quote


One reason to retain that land, even though burdened by easement with poorly maintained road, would be for future development or to prevent it from being developed.
Link Posted: 7/20/2021 8:28:20 AM EDT
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By RV-1:
he was telling me that we have what is called a "Mechanical Right of Way" that means we've been using it so long it is recognized as legal. However, should we stop using it for 7 years then we lose the right to use it.

.
View Quote


FWIW, my first house, in Illinois, had a shared driveway.  The neighbor decided he wanted to fence and have it to himself because of his new daughter.  He had enough class to tell me in advance.  It turned out that Illinois is somewhat unique among the states because it doesn't have a Mechanical Right of Way and the neighbor was within his rights.  He assisted me in putting in a new driveway on the other side of the house, so it worked out OK.  He even had measured the space available on the other side before making the decision, so he was pretty considerate.
Link Posted: 7/20/2021 8:45:03 AM EDT
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Originally Posted By ducbsa:


FWIW, my first house, in Illinois, had a shared driveway.  The neighbor decided he wanted to fence and have it to himself because of his new daughter.  He had enough class to tell me in advance.  It turned out that Illinois is somewhat unique among the states because it doesn't have a Mechanical Right of Way and the neighbor was within his rights.  He assisted me in putting in a new driveway on the other side of the house, so it worked out OK.  He even had measured the space available on the other side before making the decision, so he was pretty considerate.
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Too bad all neighbors are not like him!
The people around here are pretty decent too about most matters.
We're fortunate that we only have to deal with my cousin, Hell, he gave us our grandparent's old house . . . only asked that we pay for the land.
Link Posted: 7/24/2021 7:17:56 PM EDT
OP, find a small mom and pop survey outfit in your AO and explain your situation.
Any LS worth his license should be able to explain your options, don’t call an attorney.  
You can’t landlock a residence in Virginia, there needs to be some sort of legal ingress and egress to the house, even across the lands of someone else.
Think emergency vehicle access, can’t have the ambulance or fire trucks trespassing.
Odds are pretty good there is already an easement recorded and should be a simple matter of finding it. If not the term “prescriptive easement” has been brought up, that would be the next step.
FWIW, I’ve been surveying in Virginia for 26 years. Not licensed and spend 99% of my time doing land development stuff, but your situation is not unusual.
HTH
Link Posted: 7/25/2021 7:53:32 AM EDT
[Last Edit: 7/25/2021 7:56:44 AM EDT by RV-1]
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By chipling:
OP, find a small mom and pop survey outfit in your AO and explain your situation.
Any LS worth his license should be able to explain your options, don’t call an attorney.  
You can’t landlock a residence in Virginia, there needs to be some sort of legal ingress and egress to the house, even across the lands of someone else.
Think emergency vehicle access, can’t have the ambulance or fire trucks trespassing.
Odds are pretty good there is already an easement recorded and should be a simple matter of finding it. If not the term “prescriptive easement” has been brought up, that would be the next step.
FWIW, I’ve been surveying in Virginia for 26 years. Not licensed and spend 99% of my time doing land development stuff, but your situation is not unusual.
HTH
View Quote


@chipling

Thanks! I will do that, how can I find a mom n pop in Sussex county?
Link Posted: 7/25/2021 2:44:40 PM EDT
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Originally Posted By RV-1:


@chipling

Thanks! I will do that, how can I find a mom n pop in Sussex county?
View Quote


RV-1, sure thing!
Give the VAS a try, they’d be your best resource.

https://www.vasurveyors.org/search/custom.asp?id=4115

Good luck!
Link Posted: 7/26/2021 3:42:30 PM EDT
[Last Edit: 7/26/2021 3:49:30 PM EDT by pevrs114]
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By Panta_Rei:


Ah, the American way.....insert attorneys into everything.  They can screw you with this.   The property I bought has a 100' wide easement for a gravel driveway the entire length of the East side.  The gravel road is not properly maintained and is eroding into my pond and I have to freakin pay taxes on an acre of land I don't have much right to.  Why wouldn't you just carve out said land since it's all edge and keep it simple?  Because attorneys!
View Quote


Worst advice I've seen on Arfcom in years. And that's saying a lot.

No, let's not let professionals trained in the ins and outs of a very complicated field handle an issue so we can prevent sticky problems down the road.

Let's just hand-jam it ourselves. Totally cool.

ETA - let me put it this way. Hey OP, you know your other thread, about the transmission installed incorrectly, pinching a wire? That's what this would be like, if you tried to do it yourself, or have someone else other than a lawyer do it.


Hire an attorney.
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