Easement Question(s)

[J Scott]

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?

[Bill Gulley]

@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. :)