Easement Question(s)

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Easement Question(s)

J ScottPro Member
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Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes

I'm working on purchasing a piece of land (with an old house) that I would use for some new construction. When looking at a land map of the property (and also looking at an old survey the owner had), it appears the piece of land I'm interested in is separated from the main road by another thin strip of land that is owned by a neighbor ("my" property is landlocked).

I searched about 50 years back through the deeds and couldn't find an easement, but it's possible it was granted even longer ago and it's there somewhere (the house on the lot was built in 1958 but the land has been transferred since 1912 or so). Or it's possible that there's never been a formal easement and everyone has just been okay with it.

I've found the owner of the strip of land sitting between "my" property and the main road, and it's actually a non-profit county organization that provides homeowner assistance (they bought the property next door in 2012 and this is part of that land).

I've already visited the county, and the planners there weren't very helpful (they seemed busy and basically told me they couldn't give me much info). I'm now trying to figure out the best next steps and I have some questions:

1. First, any suggestions on the best way to proceed in general?

2. Who would be the person to consult who could tell me if an easement is already in place? Obviously, I can keep digging through the old deeds, but it's possible I'm overlooking it. Would this be an attorney, a surveyor a civil engineer? Where should I start?

3. If I were to approach the owner of the strip of land and get them to agree to an easement, would that automatically give me the right to build a driveway for access? Or would the construction of a driveway require special permission over and above an easement?

4. Obviously, I could probably argue that I have an easement by prescription (it's been used so long that it's now part of the property), but I imagine getting this legally documented and enforced would be time consuming and perhaps costly. Any insight into this process and if it's worth going down before talking to the owner of the strip of land?

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Bill Gulley
Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
12y

@J Scott

Shame on me I didn't read all the posts.

I'd say you're lucky that the neighbor is a non-profit housing entity, they will understand that they can not restrict access as a property can't be landlocked from that parcel from which another parcel was originated and if your property wasn't sold off that parcel courts usually grant the most direct route with the least economic impact.

I suggest you go to the owner, talk to the President or Executive Director. Roadway easements are the easiest to obtain (next to utility) as it's common everywhere. I don't know what the term is for adverse possession claims there but I'm sure that going back to 1958 is covered. When you buy the claim runs with title, the rights to make that claim are conveyed to you as the new owner, so 1958 is your starting period, if it's the only access that has been used.

It's a slam dunk you'll get access IMO, if it were another individual they may hold you up for consideration not really understanding your position. 2 aspects, pay for an easement or pay an attorney.....that's if the owner was some bandit individual. That's not what you have, they have RE knowledge, so they should be easy to deal with.

What you need is a legal description of the roadway. I have written some in doing a minor subdivision but chances are very good that an owner can't write a legal, it would need to be an attorney if they had the cahoonas to do it, but certainly a survey engineer. Hopefully your road is a straight shot and doesn't curve around.

Your roadway will be described from the center line of the roadway as to width, the width might be dictated by law or ordinance but it doesn't necessarily need to be cleared, as you can drive around a tree or obstacle so long as you're within the easement. It will run from your property line to the public right of way and described by the center line of the public road, so see a surveyor.

If that N/P purchased that property with a dwelling, they may have an easement as well if they are putting in lots to develop. Before they can divide and build they will need a description. So it's mutually beneficial to file a roadway easement.

You can pave on your property to the property line to the easement. Paving on an easement is or can be covered in the agreement as it needs to address maintenance of the roadway, be it dirt or concrete, maintenance needs to be addressed. Your county probably has roadway surface requirements for what is called "all weather surface" that could be chat. The issue is that with other properties along the roadway you are establishing a public road and that can be a different matter, cost can be high. You may be able to establish a private roadway with fewer restrictions with the easement being granted to all properties adjacent to the road. If you can have a private roadway I doubt anyone would object to you paving it. Make sure maintenance is not all yours unless you are the only one using it, that can be a financing matter in the future.

Anyway, my guess is that this won't be a big deal since the neighbor is in housing. I'd suggest you go to them and get an agreement to have an easement formalized as they also may need it. Tell them it's required for financing, as it will be.

You can find roadway agreements filed for record, you could adopt the agreements and use your created legal, execute and notarize then file it. :)

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  • Roy N.Pro Member
    Rental Property Investor · Fredericton, New Brunswick · Member since 2013 · 7k+ posts · 4k+ votes
    12y

    @J Scott

    Being from a different country, my experience with easements could likely not be applicable.

    I initially misread your post and thought there was already pattern of access traversing the strip of land (the perscription). Consequently, below text is not pertinent:

    How long has the property's driveway been traversing that strip of land? Here if there is an established pattern of {permitted} use, than you can usually obtain a formal easement quite easily if one does not already exist. We went through this with a shared driveway a few years ago - no easement could be found, but survey records showed the shared driveway had existed for at least 50 years. We had an easement drafted and sent to the other land-owner along with a legal opinion of the established permitted use and all went rather smoothly. Cost us $250.00

    Where there is no existing right of way across your neighbours strip of land, you will most likely need to negotiate one ... unless you can convince the City planning department to impose it.

    1Reply
  • Cal C.
    Investor · Peachtree Corners, GA · Member since 2014 · 1k+ posts · 1k+ votes
    12y

    @J Scott you alluded to a prescription but it might help if we knew what kind of access the old house had?

    1Reply
  • Steve Babiak
    Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    12y

    Don't forget that it is possible to claim under adverse possession.

    1Reply
  • J ScottPro Member
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    OP
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Roy N.:
    @J Scott

    Being from a different country, my experience with easements could likely not be applicable.

    I initially misread your post and thought there was already pattern of access traversing the strip of land (the perscription). Consequently, below text is not pertinent:

    How long has the property's driveway been traversing that strip of land? Here if there is an established pattern of {permitted} use, than you can usually obtain a formal easement quite easily if one does not already exist. We went through this with a shared driveway a few years ago - no easement could be found, but survey records showed the shared driveway had existed for at least 50 years. We had an easement drafted and sent to the other land-owner along with a legal opinion of the established permitted use and all went rather smoothly. Cost us $250.00

    Where there is no existing right of way across your neighbours strip of land, you will most likely need to negotiate one ... unless you can convince the City planning department to impose it.

    Actually, that's still very pertinent...

    Access to the property has been through that strip of land presumably since the house was built -- 1958. But, it's just a dirt path...there's no driveway or formal entry to the house.

    I agree was may legally already have an easement...if that's the case, would my next steps be through a real estate attorney or the Planning Office (Planning and Zoning have not been helpful at this point)?


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  • J ScottPro Member
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    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Cal C.:
    @J Scott you alluded to a prescription but it might help if we knew what kind of access the old house had?

    See above...no formal driveway, just dirt (all the way to the house). But, it's clearly been the main method of access for quite a long time...

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  • J ScottPro Member
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    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Steve Babiak:
    Don't forget that it is possible to claim under adverse possession.

    Good point...

    I'm going to try to formally tie up the property with a contingency on the easement, at which point it will be worth spending a few hundred bucks on an attorney...

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  • Steve Babiak
    Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    12y

    I recall @Bill Gulley posting about landlocked parcels ...

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  • Roy N.Pro Member
    Rental Property Investor · Fredericton, New Brunswick · Member since 2013 · 7k+ posts · 4k+ votes
    12y

    @J Scott

    If City Planning is not being useful, then you are really only left with two choices:

    1. Having an easement agreement, along with a legal opinion (which may address adverse possession) and present it to the neighbour; or
    2. Approach the neighbour to purchase the strip of land. It sounds like it is unusable to them and getting rid of it might actually reduce their taxes.

    Personally, I would try the second approach first {provided the costs are reasonable}.

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  • Jesse Sumner
    Real Estate Investor · Tulsa, OK · Member since 2013 · 31 posts · 20 votes
    12y

    I would contact a RE attorney. First, you may want him to conduct a title review and see if he can find the easement. Second, depending on what the attorney finds you may have several options available including adverse possession, several possible easements -implied, necessity, by prescription, by estopple, depending on if the property is located on a section line you might be able to open up a road on the section line. All of these would require a lawsuit. Further, your use may be limited to the width of the small dirt road.

    My suggestions is once you talk to the attorney and determine the status of the road, what your options are and the strength of your claims, meet with the landowner and try to purchase an easement. Buying an easement would, most likely, be much cheaper and more definitive that a lawsuit. Also, you could try to get it widen.

    Good Luck!

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  • Bill S.Pro Member
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    Rental Property Investor · Denver, CO · Member since 2013 · 4k+ posts · 2k+ votes
    12y

    @J Scott "Usually" if you see it on a survey it really exists. Sometimes easements are recorded by way of a plat and there is no separate written document. It's shown on the plat so it exists. Also read the meets and bounds for the property and if you have access to CAD you can plot them to scale and see if the legal description accounts for the strip of land or not. Quickest way is to contact the surveyor who prepared the survey showing the strip of land. If they no longer exist, usually (again) another firm or surveyor took over their files and you can get the info from them.

    This tactic (strip of land) is employed to maintain control over the adjacent land after selling it (having your cake and eating it too). Developers sometimes do it to protect their investment in the road and utilities in the road. They'll sell off part of the tract but leave the strip so that they must approve of any one accessing the road or utilities since it must cross their land. Usually the cost of crossing is what would recoup the share of the road and utilities. Time has passes so who knows what they would charge now.

    As far as legal access. If the road is a public road then all planning/zoning road department requirements would have to be met. If the road is private. Probably can do what you want but obviously you have the strip of land issue.

    If you get an easement across the strip of land then the owner of the road would be who determines what and how access works. See the comments above regarding a public road.

    Don't forget utilities if you get an easement. You may want to bring water, sewer, gas, electric, cable, and etc. through there some day.

    Prescriptive easement would be fairly limiting. In my state, you can't acquire rights to a two lane paved road by using a two track trail for years. Here it is very very very hard to get a prescriptive easement. Here it has to be hostile which is easily defeated by someone testifying that the users got verbal permission for as long as they owned the property.

    A lawyer couple got adverse possession (like a prescriptive easement) of part of a property here that resulted in the lot that they got the adverse possession from being unbuildable. The public outcry was so great that they gave the land back.

    Hope I answered all your questions.

    A lawyer would be the last option for me after all the leg work has been done. A title company can help you get copies of all the documents related to the chain of title. Usually not too expensive compared to lawyers. Surveyors will likely consult with you for no fee as well.

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  • J ScottPro Member
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    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Roy N.:
    1. Approach the neighbour to purchase the strip of land. It sounds like it is unusable to them and getting rid of it might actually reduce their taxes.

    Personally, I would try the second approach first {provided the costs are reasonable}.

    Thanks Roy...great info!

    This (above) is the optimal route and what I was originally considering. The problem is, I have a feeling it would be expensive and time consuming, as we'd need to get a survey, do some engineering work and file for a formal subdivision of the property. Then, we'd have this 1500 sf piece of land that we'd either need to convey separately (with it's own tax ID) or go through the same process as above combining it with our existing parcel.

    Perhaps there's a streamlined way of doing this that I'm not familiar with...I'll be looking into that as well...

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  • J ScottPro Member
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    OP
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Bill S.:
    @J Scott "Usually" if you see it on a survey it really exists. Sometimes easements are recorded by way of a plat and there is no separate written document. It's shown on the plat so it exists. Also read the meets and bounds for the property and if you have access to CAD you can plot them to scale and see if the legal description accounts for the strip of land or not. Quickest way is to contact the surveyor who prepared the survey showing the strip of land. If they no longer exist, usually (again) another firm or surveyor took over their files and you can get the info from them.

    Great info!

    Actually, the survey indicates that the strip of land is part of the adjacent (neighbor) lot but doesn't say anything else, which is what leads me to believe there is no current easement. But, talking to the surveyor first is a great idea.

    The metes and bounds description (based on the markers I can find) doesn't seem to include the strip, so I don't believe it's in there either. But again, great suggestion and thank you.

    Thanks again!

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  • J ScottPro Member
    Moderator
    OP
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Jesse Sumner:
    I would contact a RE attorney. First, you may want him to conduct a title review and see if he can find the easement. Second, depending on what the attorney finds you may have several options available including adverse possession, several possible easements -implied, necessity, by prescription, by estopple, depending on if the property is located on a section line you might be able to open up a road on the section line. All of these would require a lawsuit. Further, your use may be limited to the width of the small dirt road.

    My suggestions is once you talk to the attorney and determine the status of the road, what your options are and the strength of your claims, meet with the landowner and try to purchase an easement. Buying an easement would, most likely, be much cheaper and more definitive that a lawsuit. Also, you could try to get it widen.

    Good Luck!

    Thanks Jesse! Great info...

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  • Bill Gulley
    Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    12y

    @J Scott

    Shame on me I didn't read all the posts.

    I'd say you're lucky that the neighbor is a non-profit housing entity, they will understand that they can not restrict access as a property can't be landlocked from that parcel from which another parcel was originated and if your property wasn't sold off that parcel courts usually grant the most direct route with the least economic impact.

    I suggest you go to the owner, talk to the President or Executive Director. Roadway easements are the easiest to obtain (next to utility) as it's common everywhere. I don't know what the term is for adverse possession claims there but I'm sure that going back to 1958 is covered. When you buy the claim runs with title, the rights to make that claim are conveyed to you as the new owner, so 1958 is your starting period, if it's the only access that has been used.

    It's a slam dunk you'll get access IMO, if it were another individual they may hold you up for consideration not really understanding your position. 2 aspects, pay for an easement or pay an attorney.....that's if the owner was some bandit individual. That's not what you have, they have RE knowledge, so they should be easy to deal with.

    What you need is a legal description of the roadway. I have written some in doing a minor subdivision but chances are very good that an owner can't write a legal, it would need to be an attorney if they had the cahoonas to do it, but certainly a survey engineer. Hopefully your road is a straight shot and doesn't curve around.

    Your roadway will be described from the center line of the roadway as to width, the width might be dictated by law or ordinance but it doesn't necessarily need to be cleared, as you can drive around a tree or obstacle so long as you're within the easement. It will run from your property line to the public right of way and described by the center line of the public road, so see a surveyor.

    If that N/P purchased that property with a dwelling, they may have an easement as well if they are putting in lots to develop. Before they can divide and build they will need a description. So it's mutually beneficial to file a roadway easement.

    You can pave on your property to the property line to the easement. Paving on an easement is or can be covered in the agreement as it needs to address maintenance of the roadway, be it dirt or concrete, maintenance needs to be addressed. Your county probably has roadway surface requirements for what is called "all weather surface" that could be chat. The issue is that with other properties along the roadway you are establishing a public road and that can be a different matter, cost can be high. You may be able to establish a private roadway with fewer restrictions with the easement being granted to all properties adjacent to the road. If you can have a private roadway I doubt anyone would object to you paving it. Make sure maintenance is not all yours unless you are the only one using it, that can be a financing matter in the future.

    Anyway, my guess is that this won't be a big deal since the neighbor is in housing. I'd suggest you go to them and get an agreement to have an easement formalized as they also may need it. Tell them it's required for financing, as it will be.

    You can find roadway agreements filed for record, you could adopt the agreements and use your created legal, execute and notarize then file it. :)

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  • J ScottPro Member
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    OP
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y

    Thanks Bill...awesome info!

    Sounds like something I could myself, but to ensure that I don't screw anything up (since I'll be reselling the property later), I'm probably going to consult an attorney and let him handle the details (assuming I can get the property under contract).

    But, at least now I can have an informed conversation with everyone involved...

    Thanks all!

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  • Tom Meade
    Real Estate Investor · Boston, MA · Member since 2013 · 108 posts · 71 votes
    12y
    If you go the route of purchasing the parcel, getting it merged with your larger parcel may not be that bad - you might be able to file an Approval Not Required ("ANR") plan to get the lots merged.
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  • Roy N.Pro Member
    Rental Property Investor · Fredericton, New Brunswick · Member since 2013 · 7k+ posts · 4k+ votes
    12y

    @J Scott

    What was your resolution to the easement situation?

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  • J ScottPro Member
    Moderator
    OP
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    12y
    Originally posted by @Roy N.:
    @J Scott

    What was your resolution to the easement situation?

    The owner doesn't want to come down to our price. I'm negotiating an empty lot around the corner, and if we can get that, it will be worth buying the easement property just for the economies of scale.

    So, it's still in play, but on the back-burner for now...

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