question about easements through our land
 

before we bought our place a few acres at the back corner had been sold off. (we were lied to about it when negotiating the deal but that is water under the bridge) all the paperwork we have shows an easement through the property but not actually to theirs. that remains to be sorted out for sure.

they want to sell the property and plan to have a dozer clear access. if they come through our property (following the portion of the easement that our paperwork shows) to access theirs it will split our property in half (approx. 30 acres). we are gently suggesting they seek an easment through the back since there is a home and road only 100' or so from it and have also gently asked them to show us where their easement is placed because from our end it doesn't look like they have one. there is a legal easement that gets them about 2/3 there but is entirely on, and leads solely to, property we bought anyway which is why it didn't bother us.

we don't want to be unreasonable and we will not be a huge obstacle even if it does truly turn out they don't have a legal easement, but we do prefer they gain access elsewhere and plan to make it clear what they will be responsible for if they come through our land. we will be contacting the owners of the other land where it makes much more sense for them to gain access and might even be willing to pay for the survey and some compensation for it just to keep them off our land, but how that will work out remains to be seen and we want to be prepared for all possiblities as well as make sure we are clear on what will be required of them. some questions.

we have animals. shouldn't they have to pay to install gates and fences? it doesn't seem fair that they could just come plow through our fences and leave us with thousands of feet of fence to put up to keep animals off their driveway or have to pay for gates for them to have access through the animal areas. I think its their land and if they want to get back there it is their responsibility to do what needs to be done so that we can still utilize our land without added expense. but I don't know where we are legally on that.

also. do they legally have to create a real drive? I would much prefer a good gravel drive then a huge eroded mud pit which would be created if they just plow through it all with a dozer. erosion can be a nightmare and expand well beyond the original cleared area and the soil here isn't conducive to rapid regrowth of destroyed vegetation.

this could turn into a huge pia.

It depends on the law in Oklahoma. For example, here in Arkansas a landlocked piece of land may file a petition with the court to obtain an easement. Costs money, takes a long time, and at the end the person getting the easement has to pay damages, and may have to pay for things like fencing and gates. But again, it depends on the law in Oklahoma. Sound like it's going to be a mess....

I'm not sure if your problem would be covered by title insurance. This is one of the times I'd advise talking to a lawyer. Lawyers run the gamut. In most areas there is one with the knowledge and integrity to really help. Others are a waste of money. To them you're another source of money they can bleed.

I'd look for an older lawyer that started practicing before ambulance chasing became an easy way to wealth. If you have a local college where a lawyer teaches business law, I would ask them for a referral. One of the local retired lawyers teaches boundary law to the surveying students.

Too bad you can't negotiate a low price and buy their property, without an easement, since you wouldn't need one. Unfortunately, that option will only be available for a few of us.

Who owns the easement?

Do you have a Title Report? If you are the Servient Estate with them as the Dominant Estate, who legally owns the Access Easement? I'd then go to see an Atty to get that Easement moved to the back of your property...may happen via settling. Sometimes, things get worked out when there is a well written atty letter. Another option is to offer a bit of a carrot... You could offer to sell them the back strip of your property that equals the Access Easement, if they agree to move it (if they are legally the owners of that right...). What this accomplishes, is increasing the value of your property, will allow it to be sold more easily, if ever necessary, and you are then not stuck with 50% of the concern. If you have to fence the back, along one edge, that would be better than having it in the middle of your property, fencing both sides... Maybe, a deal could be worked out to get them to pay for the fencing, maintain it, for the ownership of the Access Easement at the back... Another idea is to swap equal land for equal land, do a Boundary Line Adjustment and move the Access Easement to the back... Ideas, anyway :) I wish you the best!

Why not offer to buy the property? That way, they don't have the expense of a dozer and clearing it? My personal opinion is "You can NEVER have too much property!" See if a deal can be cut - that way eliminating future problems as well.

What exactly does the "easement" say? If it just gives them access to their property, to me that would mean they are able to drive through a field or whatever and gain "access" to it. I don't think an easement grants access to make a road on YOUR property (you would be losing property by doing this).

Now might be a time to go to a lawyer who specializes in land (easements, contracts, etc) and see just exactly what it means in your state.

We had property adjoining us that was landlocked - no road to it, etc. While we did have to give the owners access (our property was the easiest way to get to theirs), that meant they could drive as far as they could go and WALK the rest of the way (it was in the woods). It meant they couldn't have their property logged - which is what they wanted to do. A few years later, they sold it to me because there wasn't much they could do with the land otherwise. Of course, your state laws may be different.

so it sounds like a shark er I mean lawyer might be in order huh? we have contemplated offering to sell them the property neccesary to access it. however we would really really prefer they get access elswhere. it is stupid anyway. coming from the other direction they may need 100' of easment/drive. coming through our property they will need almost 2,000'. it seems like such an assanine arrangement. the woman who bought it paid almost nine times as much per acre as we did and it is not improved at all. there is no way we could justify buying it from her for what she paid for it. she really got screwed imo. I hate to be a B**** but the fact that she got shafted isn't really our problem and we don't have the cash to be rescuing her from it.

Absolutely.
Around here you can't sell a landlocked piece of property because easements are not considered "permanent".

If their "easement" doesn't actually go all the way to their property, it may not really be valid. If the Court has to arbitrate an easement, they generally go with the closest access to a public road

hmmmm. I suppose that after they figure out how much its going to cost them to get it sellable they ( the woman bought it but now apparently has a new man) may be willing to unload it for whatever we will buy it for. it might pay to not be too nice and insist on legal access and full compliance with all legal requirements...gee that sounds awful :(.....i can't imagine anyone buying it if they can't even get to it. well...er...I guess she possibly did, so thats not entirely true.

It may "sound awful", but building huge runs of fencing and splitting your place in half to make her happy sounds more awful to me.

The laws are set up to protect both parties, so you might as well take advantage of them, as she will certainly do

It is up to them to prove to you that they have an easement. I would not allow them to access or set foot on your property without providing documentation showing legal access. I would consult an attorney, keep a detailed log of events, take pictures of the current condition of the land that they want to use for access, and post No Trespassing signs. If they continue to use your property without providing documentation, I would file for a restraining order. Call the Sheriffs and ask for a log entry each time that you have an issue. I've been very successful in deterring very motivated people trying to steal access to their property. Keep in mind that they likely knew that there was no legal access to their property when they purchased it dirt cheap. Now they just want a freebie. The key is to make them the bad guy before they portray you as the enemy when you wind up in court.

Also, if you allow them access you lose all control of the road, are there other property owners that might want to use the same access? If so, good luck getting them to keep a gate closed. I know somebody who just lost a court battle over a gate not being closed on an easement.

Jason

I would hate to be in their position. but I hate to be in ours also. we just got up 600' of fencing after being here a year. in fact I still have 5 t-posts to get in the ground to complete it and we haven't any gates yet. I can't imagine trying to put in another 2000' in this rock. i'll do just about anything to avoid fencing anymore unless it is absolutly undeniably necessary. it was a huge chore to get what we have done so far.

You MUST get a real estate lawyer to look at all the documents and figure out exactly what is what and who owns what and if there *really* is an easement.

Otherwise, you are playing tiddlywinks in the dark.:)

Did you have the property surveyed? If not you might want to have someone come out and mark the described easement before you get too deep in things.

You need to get a REAL ESTATE atty. Not just an attorney. Easement wars are common here - as a matter of fact a person was killed a few years back over an easement issue. When money is involved tempers can get hot.

Is the easement deeded & recorded? If you did not know of this when you closed on your land, you Do have recourse to the title comapny and the seller - who should have known.

My neighbor has the same situatuion. I have a legal, deeded and recorded easement through her property. She is suing the people who sold her the property and the title company. The easement was recorded incorrectly, but that was found not to be a valid excuse.

Because the easement bisects her property, we are negotinating to move the easment IF she will put in a raised roadway as she wants the easment in an area that floods. No thanks. Because she fenced off the easment, she has had to put in a gate for me. Mind you, this is not my main access to the property, but if I ever want to split it I will need that access.

lorichristie has the best alternative solutions for you to pursue. You need to think what alternatives you have available today for the future in case you ever want/need to sell.

I believe the OP said the land cost them a fortune no freebie here . In fact they may have gotten shafted by the same folks that shafted the OP.
DQ Are they just trying to get their money back? Maybe if you both cooperate you could win a case against the original landowner about how selling it to them and later pretending to sell it to you was fraud.?


it would seem a key point. a easement that dead ends on you with out reaching them is pretty useless to them as long as it more than the 100 feet to the other road it might be VERY important.

t You mention a easement above why doesnt it look like they have one?

Id say that depends on the terms of the easement and the laws of your state ...and your negotiating abilities!

the property is L shaped. fwe bought it in two chunks a few months apart. from what I can tell from reading the legal mumbo jumbo paperwork that came with the property I can only interpret a legal easment that splits the property in half which is consistent with our understanding of its placement when we bought it. (it is on the first portion we bought with the house) it is a legal easment that has been there through several owners. neither my husband or I can remember being advised of an easement through the second chunk of land to what is the few acres sold. I looked but I get pretty cross eyed reading the southwestnortheastblah blah blah so I a may just not be understanding.

we found out about the few acres that was sold off before we closed on that portion of the land. we could have backed out but decided not to because we had already bought the house and property next to it. so I'm sure we have no legal recourse. the owners were just shady about it in that we were specifically shown the survey (which had not been updated since they had sold the few acres) when we were negotiating with them. we negotiated and purchased the house and 16ish acres and put the other 16ish acres under contract contingent on the sale of our other house. it was only after we bought the house that they said "oh yeah. and actually we already sold some of the second chunk of land so its actually only 14 or so acres. we had a fit and they knocked some money off the price. we weren't going to blow the whole deal for two acres but we sure bluffed like we would!! the guy told my husband that the lady who bought it didn't have access to it anyway so we shouldn't worry about it. so he basically told us that he screwed her over and sold her land without legal access. we were pretty shocked and really didn't believe him. we figured he was just saying that so we wouldn't blow the deal over it all.

basically. if there is an easment we can't find the documentation and we don't remember being told about it by the title company like we were with the easement on the first portion. and we were specifically told by the previous owner that there wasn't one...but I don't trust their word so much so that we consider it completely irrelevant.

but. there is always a but. it will not suprise me at all if an easement shows itself legally and we were just not made aware of it/it was glossed over or whatever.

my husband spoke with them and told them they need to come up with legal docs for it if it is there. we shall see.

If you planning on living there from now on, you have a once in a lifetime opportunity to avoid future problems. Buy them out. If you don't, you might end up with a split piece of property, and the owners could be some of the gems folks talk about on here. Think: crack smoking meth-heads, with one kid in the Bandidos, one kid a Crip, an adopted son in MS-13, they all have Harleys and four wheelers... they shoot their guns everywhere... have a pack of wild heathen bull-dogs... they 'borrow' things... they call CPS one day, the law the next, and PETA the next, on you... See the John Belushi/Dan Ackroyd movie Neighbors.

buy now, or forever hold your peace

Buy it or live with it.
 

I have to agree with Texican. A few years ago we had the chance to buy the 1/4 mile creek frontage next to our farm. The min they would take was three times what it was worth. The wife was leery but I convinced her we should bid the min they would accept even though it was way out of line price wise. Now we own it and we got it paid for. Got laughed at a lot but after ten years we still have our peace and quite and now the property in ten years is worth four times what we paid. We have had several offers for the 1/4 mile we bought and even more offers for the whole farm with the half mile of both sides of the creek. Not in my life time but its up to the wife after that. If you can buy it do it. If we had not bought it there would have been at least 20 water front cliff lots on our North side. Our privicy and peace and quite would have been history. The land had access deeded to the land across our land. The road had been there for over a 150 years so it will always be there. Figure the cost of an attorney, time, and mabey splitting the farm, all the fencing and the price may not be that much more. If the present owner does not force the issue at some time they will sell or die and leave it to some one and it starts over. Just my opinion. David

Another problem not mentioned here up to now is the WIDTH of the easement. Modern day codes/regulations are requiring access for emergency equipment. That's FIFTY feet wide for a fire truck! Then there are erosion and soil displacement requirements. They can't just come in there with a bulldozer and clear access, tear up your land and leave you with mud holes in some areas, hopefully including yours. Besides the laws codes whatever as to building an access road, in many jurisdictions there has to be a road maintenance agreement. In the Virginia counties I know about, this is a formal document signed and notarized by the parties AND the county attorney which is filed in the court records. It would be interesting to get a ball park estimate on the costs of building that 2000 foot long and however wide your local jurisdiction requires road. The cost is certain to be a shocker for the permits, soil moving (what if they have to excavate to bedrock), stone base, crusher run, etc.
It may be that if the costs are too appalling, they will have legal grounds to rescind the deal and get their money back. The guy who sold them those few acres would then almost have to sell that parcel to you at the price you paid per acre for what you already bought. Rescinding a land deal is not done often. The last time I looked, there was a six months limitation in Virginia but of course, it can be done by court order in settling a law suit. Good luck in resolving this mess and taking the loss out of the hide of the seller, not the buyers!

A lawyer is good, but my first stop would be the courthouse. We are on a private road easement and all of the paperwork is filed at the courthouse. If it isn’t there, it isn’t legal. It is actually a separate deed from our property deed.

The easement agreement also includes the road maintenance agreement which spells out exactly what everyone's responsibility is and that includes covering the full cost of putting in a proper road by the person needing to have the road put in.

You will want to look not only for documents linked to your properties, but theirs too. It is a free service at our courthouse and the people are extremely nice and helpful.

You can then print off copies of everything and take them with you to the lawyer.

.....................IF , Push comes too Shove , I'd Tell them that I'm NOT going too fence down both sides of the new Road , and THEY will have too stop and UNlock and RElock each gate they go through ! This is Leverage that should be applied only , IF they legally can use a ROW that splits your land in half ! NO one likes having too deal with locked gates in this day and age . , fordy

I agree it costs you far too much to be neighborly unfortunately. You aren't trying to be mean you just want a reasonable solution.

Here are your easement laws in OK. Looks like the new neighbors may have a caseunder the first section:
http://www.realestatelawyers.com/res...sement-law.htm

Easement By Necessity
To prove the existence of an easement by necessity, a claimant must show the following three elements:

1. Unity of title;
2. Conveyance of a portion of the land previously held under common title;
3. A resulting necessity for a right of access to the land which arose at the time unity of title was severed.

Once granted, an easement by necessity continues to exist for as long as the necessity exists. This means that if an alternative means of access to the land becomes available, the easement will terminate.

Does the abstract say anything about an easement?Did you have a lawyer when you bought the property?You need a lawyer now for sure.It appears that if there is an easement it is for you to have access to your own property.

A side note about a locking gate: Here, if you have an easement to get to your property, the other party can have a closed gate - BUT you cannot lock it -

Another piece of land, another easement - person put up a "grudge gate" across the easement (said people were driving to fast) - went to court & the law is:..no locked gates... If a rescue/fire vehicle had to get to the property & couldn't because of a locked gate so had to get out & destroy the lock, someone could die ...precious minutes wasted.

You really need to reconsider recourse to your seller & the title company if the neighbor has proof of an easement. If you have to hire an attorney, it can get mighty expensive. If they knew or the title company did not do their job - do you really want to pay for their mistake?

After all, that's what title insurance is all about & you've already paid for that.

After reveiwing the OK law Maybe you should offer to help the otherguys with a lawsuit to recover their money?

Did you have a lawyer when you bought the property?
Did you have Title Insurance when you bought the propery?

Something that has not come up in this thread is that if the persons behind who need the vehicular access intend to build a home (which one would assume they do), besides all the hassles with a driveway that need to be resolved, there is also the matter of an easement for their electricity. Maybe you will be lucky and it can be laid underground alongside the vehicle easement (which will need to accommodate their construction vehicles, bulldozers, well-drilling equipment etc) but what if your area has those huge ugly poles and wires marching across your land? If I were you, I would call my electric company. The electric company has official "staking technicians" who determine the shortest distance from the nearest pole or transformer, etc. Hopefully, that will be from the house that is closer to them which you mentioned. Perhaps you can make an appointment and take your plat (and copies of the neighbors' plats). I did that to determine what was the shortest distance from the nearest pole for me, which is how I decided where to locate my home. The engineer had a set of calipers and was very helpful in explaining certain things to me. Part of the process entailed filing another plat in court because the electric could not be brought in along an access road. It was laid underground, so I didn't have the ugly poles, which was helpful in my case.
All in all, it sure looks like those folks got themselves in a terrible mess on top of the difficulties they are causing you. The suggestions you had as to land swap sure look appropriate to me as a way to resolve your situation!!!

IF You have to give them access do you have to give the electric,water etc access?

utilities would almost certainly be brought in from the homesites much closer to their land. any landswap would either put them in a slightly differnet location with the same problem or put them somewhere I don't want them. As in 'where I can see them'. monday I might be able to get to the courthouse to see what I can dig up.

it was a fsbo deal when we bought the place as well as when they bought their part. we tried to do it right with the standard title search etc.....I don't know if they did.

To me, this is about the most interesting thread I've seen on here because it's a real life problem where two landbuyers got tangled up in a process which clearly is going to cause a lot of stress and possibly heart ache to the buyers and. (Boy do I hate this) has set a scenario where lawyers are laughing all the way to the bank.
Op's land should NOT be cut in half by his neighbor's road access. The neighbor, before buying that secluded nice couple of acres, should have had road and utilities access all worked out in advance at least harm to all adjoining neighbors. To me this illustrates an aspect of what has changed, one might say ruined my life for the past 18 years which is the disparity between what is "legal" access as recorded in the court and what is practical and fair out there on the ground and the morass of going through zoning, building, health department and other regulations that are mix-match at best or impossible to comply with at worst. In your case, especially if there is a recorded easement which is like a bridge to nowhere on OP's land which was surveyed, rendered onto a plat, agreed to in a land purchase transaction, recorded in court all on paper but never yet (well hopefully for OP never) physically implemented.
I sure would like to have status reports as this progresses or regresses or whatever!!!

Every state has different laws.

When push comes to shove no one knows how a judge will rule, and one needs good legal representation that started before the pushing started....

Sounds like there was an easement to a portion of the land, which was now chopped up differently. That becomes 'grey area' as to whether the easement applies now to the property as it is chopped up. Intent vs actual words on paper.

In most cases the law attempts to find an access to a land-locked property.

Because of the partial easement, you are right to be concerned about it. Typically a judge will look at trying to provide access to this new property. Can come in the short way over a new easement; or can come in across your property following the partial easement which was intended to service this property, even tho the exact wording doesn't match the current bounderies.

I think your goal is to find solutions you can live with.

If you can't buy out the problem property;

Is their a route across your property that is more acceptable to you than the current partial easement?

Is there a way for you to help make the shorter easement through other neighbors happen?

If the property is landlocked, _some_ access will be found. Whatever happens to the previous seller, to your title search, to bad past deals, to lies and on & on - you might have real good recourse to go after any of those issues.

But what remains, if the new buyer ends up keeping the land, is that access to that property needs to happen _somewhere_. And very likely will end up crossing your property.

Some here will say you need to be hard core & just say no. While in my heart I agree with that.....

In the real world, if you can help find a solution that works best for you, and realize that somehow, some way, access to this property is going to happen - you will end up in a much happier place long term.

Look at the different outcomes, and try to work for the ones that are better for you. That might mean some compromise on your part. Once you all get in front of a judge, who knows what will be eemed right.

Access easements can be worded differently - we have one for a woodlot where we can cross other's fields in winter to harvest firewood. Pretty simple, harmless thing. But if push comes to shove, one can try - and be successful - in turning that into a driveway or township road crossing the fields, if one wants full-time access to those woodlots. And - there you have a housing development. Because of the limited access easement, that is the easiest route of access & the place where most will push to get the access. Sucks for the current owner of the field.....

The state, county, township all see more taxes from a housing development than from 5-10 woodlots of marginal value, so the law will try to encourage the road.....

What is ethical? I think your situation passed that point a long, long, long time ago. Your enemy is the previous owner - now you & the other new owner are the ones left to yell at each other. It comes down to solving the problems with the least yelling - that is how a judge & the local govts will look at it.

What will happen?

I think working for a better outcome is in your best intrest. Having a good lawyer will be important if you want to be more hard-core instead of less hard-core.

All that is up to you, but if one looks ahead, one can see more grey area, rather than hard-core black & white on this. Can't predict grey area very well. Some compromise early can save a lot of ugliness later. Try to approach the new owner as with some empathy and make the previous owner your fellow bad person, don't make yourself out to be the bad person right off the bat.

Good luck.

--->Paul

I would take myself to the County Clerks office in the Court House.

Have the legal calling of the property that the easement is attached to.

Ask someone in the clerks office to help find the book containing the filings for the Section the property is located in.

Work backwards until I found where the Easement is recorded. Then find the book that has the actual easement. Have a copy of the easement made. Probably cost a dollar.

Then I would read the easement looking for: who owns the easement, what the easement is for, location of the easement on the property, whether it is a restrictive easement or a blanket easement.

If I could not understand the terms of the easement, I would then find an attorney who specializes in land sales paperwork, and get a legal opinion. Probably cost less than $100.

Depending on what his legal opinion is would determine my next course of action.

As to the small holding getting access from the drive closest to that property, it would depend on what kind of access those people have to their property. Public road or private drive.

Each State has it's own laws. Here in Indiana, there is a little piece of land, not far from us, 8 acres I think, that is land-locked. There never was an easement granted to it.
And, Noone will grant one.
It is a prime piece of land, with no access.
It has been bought and sold a couple times, that I know of. The poor buyers eventually
give up and resell it.........
That's just the way it is.

That's a bit warped! Either one of those owners needs to buy the land or let people in, that's just wrong.

Ethically wrong but legal as all get out.

I am sure it is, that's why I posted somewhere recently that the law has nothing to do with ethics or morality!

i hope you keep this posted as well, very interesting at the least!

and i know having someone go across my property whenever they felt like would pretty much ruin it for me. as for gates, one animal lost thru a gate left open, even if compensated, wouldn't really ever be compensated.....

nothing could replace my horse if he were killed or injured! esp in this way. so having someone go thru my animals?, wow, tough place for the OP to be in.