Posted: 9/22/2009 8:43:50 AM EDT
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I am considering some land that does not have road frontage on a state maintained road. It does have access by way of an old road that travels through several other unoccupied properties. The real estate agent described this as a Prescriptive Easement on this road since it had been in documented existence for approximately 80+ years. Before that, the road existed, but there is no documentation.
There are no houses on this property in question, so I would be building one. As stated above, all of the other properties that this road runs through are currently unoccupied, forested land. The road terminates on the property that I am currently considering for purchase. There are ruins of a small home that existed at one point c.1850 or so. I would consider the road "unimproved" in its current state. It is passable by any vehicle with high ground clearance easily, and still passable by any car with normal ground clearance, albeit slowly. I would certainly need to have the road "improved" (re-crowned and graveled) before attempting to get any materials trucks through to build a house. There is one point along the road for a potential washout, due to a nearby beaver dam, which was removed about a year ago…they will be back at some point. This area is currently dry and stable. The current owner has installed two gates along the road. One at the property line, and another where the road meets the state road. Both are currently locked. I am not sure if the gate at the state road is there by agreement (of adjacent landowner), or if it is just currently not being contested. There is title insurance on the current property. It is my understanding that this could not be achieved without some legal right-of-way into the property. I have not spoken to an attorney yet regarding the legalities involved, and my rights to use, improvement, and maintenance of the road in question. I am also looking into an estimate for the road work & gravel. Anyone here have any experience with this type of easement? This question really isn’t survival related other than this land would act as my primary residence and BOL in one, since it is remote. Specific Questions: Would I need to get permission from each land owner to improve the road? Should one attorney’s position on this matter be enough? Should I have several opinions? What are the red flags here? My concern lies only in that there is no “deeded right-of-way”, and based on my lurking here for several years, I know this to be important. Is it legal to land-lock a parcel of property? Sorry for the long post. Thanks for your input. |
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I would say that the "land locked" easement is state specific. I would definately get an attorney involved. This......and your concern about a "deeded right of way" is of paramount importance.....it's priority #1. You need something in writing guaranteeing this. Good luck with your purchase, it sounds great! RG |
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this is a state specific question, and you have not given that information.
I do know that in my state, Louisiana, any previously established access route to the property will continue to remain. If no known access route exists then adjoining property owners must give "reasonable access" to the "land locked" land owner - but as I stated, this is state specific so it would be in your best interest to sit down with an real estate attorney with a map, pictures and any other data you have gathered to get an opinion. |
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There is title insurance on the current property. It is my understanding that this could not be achieved without some legal right-of-way into the property. Title insurers will sometimes make the gamble that nothing is wrong. For example, my title insurer had not even completed the official property boundary survey by the time scheduled for my closing, yet they were willing to insure that none of the out-buildings and improvements were on adjacent property. I had done my own title and survey research and was comfortable with the situation. Speak to a lawyer who is familiar with property law in your state. If he or she knows the law, you shouldn't need any second opinions. I am not a property lawyer and can only speak in generalities regarding issues you may want to raise with the lawyer you do consult. This is not legal advice, but only a few talking points. Generally, a land-locked parcel will (by necessity) be given a prescriptive easement across other properties to allow one to get to and from the property. I'm not sure if any state would say otherwise. Prescriptive easements will likely also cover power/water/utility lines. If you have a road easement, it will generally be your right to maintain the road in useable condition (some states may have exceptions - look into it) without having to get permission of other landowners. Of course, it is at least polite to discuss any changes with the existing property owners and may go a long way towards avoiding any hard feelings. If the road is currently not easily passable, your resurfacing of the road and abatement of drainage problems may be considered "maintaining" the road rather than "improving" the road. If you were to widen it, or plan to run big trucks across it frequently (aside from the build phase), you may run into problems. The person across whose property the road runs will likely not have any obligation to maintain the road, but will be obligated not to interfere with your use of the road (no gates, etc.). Other topics you may want to discuss with your lawyer: Potential (probably very unlikely) red-flag - if the current prescriptive easement is found problematic for some reason, your solution might involve receiving another prescriptive easement in a different (and possibly less desirable) position. If this were to happen, you would be the one likely stuck with the bill for building an entirely new road. Estoppel - even if the easement road is not documented, the owners of the land across which the road runs may be barred from challenging the road's legitimacy if they purchased those parcels with knowledge of the road's existence. Look back further in the land records if they are available. Unless the land was subdivided before the state road was put in place, there is the possibility that the easement is memorialized somewhere. If the road has been there that long, you may want to discuss the possibility of adverse possession. It is a long shot... |
| depending on the state a prescriptive or adverse possession easement may be very restrictive. IE the old path next door the farmer takes to get to his back forty may be an prescriptive easement, but only for farming IE not for residence. BE careful, talk to a lawyer and be friendly with the neighbors... |
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I am also looking into an estimate for the road work & gravel. Anyone here have any experience with this type of easement? This question really isn’t survival related other than this land would act as my primary residence and BOL in one, since it is remote. I can't help much with your specific questions, other than to echo what some of the other guys have said: consult an attorney who you trust. I certainly would. One thing I can say is to keep in mind that improving a gravel road is never a permanent proposition. No matter how well it's done, it'll always require more work at some point....maybe sooner rather than later. Make sure you balance the estimate you get for having a contractor do the work against buying the equipment to do it yourself. It would certainly be slower to do it yourself but if you're not in a hurry you might find that it makes more sense in the long run to buy what you need (tractor with implements vs. skid steer) to maintain the road up front. Eventually you'll have to buy something to fix/maintain that road in any case. |
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One thing I can say is to keep in mind that improving a gravel road is never a permanent proposition. No matter how well it's done, it'll always require more work at some point....maybe sooner rather than later. Make sure you balance the estimate you get for having a contractor do the work against buying the equipment to do it yourself. It would certainly be slower to do it yourself but if you're not in a hurry you might find that it makes more sense in the long run to buy what you need (tractor with implements vs. skid steer) to maintain the road up front. Eventually you'll have to buy something to fix/maintain that road in any case. This is good advice here. I am planning on buying some equipment to at least give the road some good "tune-ups" along the way. Most likely in the form of a tractor with implements. I figure having a pro get it to a better state would make things easier in terms of maintenance for at least a few years. Thanks for all of the input from everyone. I am definitely feeling better about giving an attorney a few billable hours to research this situation. Even if I get an answer I am not looking for, at least I will know that it would not have been a good investment. Both the tax map and the last survey (late 60's) show the road. |
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<snip> This is good advice here. I am planning on buying some equipment to at least give the road some good "tune-ups" along the way. Most likely in the form of a tractor with implements. I figure having a pro get it to a better state would make things easier in terms of maintenance for at least a few years. <snip> Grader like this if used at 1/2 throttle and with a little sense would build a fine road. It would be cheap enough to keep and will maintain the road for the rest of your life. 
(not mine just something I found online) ETA the Township has an operator for the townships grader. He works for very little money and often part time for the township. If you had a grader he could build the road for you. |
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others have given good advice, it's definitely worth a couple hours w/ an attorney. my driveway is a deeded easement and i do all the maintenance on it. i keep the driveway nice, but i wouldn't spend a ton of money on it.
one way to get your road graded is to find out when the county will have a grader out near the area and offer the guy $50 to make a couple of passes over your road. generally, out in the county, the road maintenance is done by contractors, so they generally would jump at the chance to make a little extra money. to answer your questions: Would I need to get permission from each land owner to improve the road? no, an easement (assuming there is a recognized one) gives you the right to treat the property as if it was yours, w/i reason, as long as you don't commit waste. Should one attorney’s position on this matter be enough? Should I have several opinions? one reputable attorney should be enough. What are the red flags here? My concern lies only in that there is no “deeded right-of-way”, and based on my lurking here for several years, I know this to be important. you've pretty much identified the flags - you want to make sure the easement is recognized. even if the easement is not recognized, you would likely be able to petition for an easement by necessity over the other people's property. the trouble though is, depending on your state law, you may have to prove that the piece you are looking at was part of the parcel(s) that were connected to the county/state road. you could probably do it, but it's going to cost you. Is it legal to land-lock a parcel of property? again, this is a state law issue. but in general, yes you can create a land locked property, however, most states have provisions to prevent this from happening. the attorney you speak with will be able to tell you your states laws regarding prescriptive easements, specifically, how long the owner has to be crossing the property before he can claim a prescriptive easement. |
See, there IS a reason that land is so cheap. 
Having had a close call regarding access and easement, no way, no how, would I build my house back in the woods and depend on my neighbors good will to get to it. 
Neighbors change, feelings get hurt, and while you may be 'right', it may get expensive to prove it. How far back is this piece of property? |
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Dont depend upon Title Insurance to guarantee your access. There are several ways the title company can insert verbage into the contract to make an access guarantee worthless and even if the coverage holds up going through years of court battles and lawyer fees isn't worth it.
I would make very sure its a deeded easement and specifically guaranteed by the Title Company on the contract. Your lawyer will be able to make this happen. Sometimes, the county or state will annex existing easments and make them county roads and the owners of the property dont know it!. I have encountered that very situation with the road to my place which did not come to light with the easment owner until I bought the land. He thought he was getting free maintenance and low water crossing construction/culverts by the county. Wrong. You are wise to be careful of easments. My lawyer said they make 90% of their money off them. |
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Would I need to get permission from each land owner to improve the road? no, an easement (assuming there is a recognized one) gives you the right to treat the property as if it was yours, w/i reason, as long as you don't commit waste. This is absolutely wrong in many states. They may well give you access to the property in the form it has been taken for many years for the purposes it has been used for. If it is a prescriptive rather then a granted easement it may well be incredibly restricted. In some states a prescriptive easement to a woodlot would likely only be good for an unimproved access however wide the existing gate is for whatever purpose the land had long been used for ( forestry, hunting farming etc) some state require ajoining landowners to give a reasonable easement. Some states allow prescriptive easement for habitual access a certain way. Some states give you nothing if there is no historical access documented. Some places existing easement can be extinguished if unused or blocked for long enough period. It may be of much more benefit to talk to a surveyor, as many attorney likely do not deal with indepth issues often and surveyors are required to have good knowledge to be licensed |
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This can be a whole mess of crap that mostly depends upon how adult the two people involved are.
I watched my dad go through issues with this on both sides of the argument, as the owner of the land with both prescriptive and deeded easements going through it, and as a property owner who needed to use a prescriptive easement to access part of another parcel of land. In our cases, the general rule of thumb for maintenance was if you wanted the road fixed, you bore all burdens of responsibility including cost, labor, ect. If you wanted access limited on the road, you had to put up the gates, and if necessary, the fences along each side of the road. And a prescriptive easement was worth exactly diddly and squat, legally. The problem is that a lot of people see someone from outside the community who is willing to drop the money for the land, and figure that they are just as able to drop a bit more money to them for the road to the land, or they had problems with other owners tearing up their property, or something. And the pissing contests just take off from there. I would suggest talking with the owner of the land with the road. Be up front about willing to make improvements yourself and respecting their property. If they act like reasonable people who would be great neighbors to have, proceed. If anything else happens, run, don't walk, away. There is always another piece of land available, and life is too short to deal with bad neighbors. |