can someone explain how "right of way" works?

Discussion in 'Homesteading Questions' started by witness, Oct 28, 2004.

  1. witness

    witness Member

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    Getting ready to legally split our 40 acres with the friends we purchased it with. It's an internal piece, but we do own the road going in, maybe 1/4 mile long? We've talked about some various solutions, but I'm thinking some kind of permament and legal right of way might be the simplest, and that someone here would know a bit about it. Whatever you can tell me would be great!
    Thank you.
     
  2. kjerckie

    kjerckie Well-Known Member

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    I would get a surveyer out and have it documented on paper with both of your signatures. Would that be an 'easement?'
     

  3. GREEN_ALIEN

    GREEN_ALIEN Sunny, Wet, Tornadoey SD!

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    You mention that "you own the road going in". Do you actually own it ie.. it shows up on title? If not then afraid not in most areas of the US. If an access does not show up on title then have the survey and have it recored as an easment with your county. Again, in most areas land cannot be land locked ie.. access must be granted.
     
  4. Christiaan

    Christiaan Dutch Highlands Farm

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    You need to do a survey and have the access added to the property description as an easement. The only way I know of to save money on a survey (they are pricey but worth the bucks) is if you can find the person who did the last survey. They usually keep their notes which saves a lot of time and effort.
     
  5. MorrisonCorner

    MorrisonCorner Mansfield, VT for 200 yrs

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    I'd make sure I had a survey done and attached to any documents used to finalize this easement or right of way. You have to assume that at some time in the future either you or your friends (or heirs) are going to want to sell one side or the other of this property. A lack of documentation is either going to result in a lawsuit between the two current owners, new owners, or a legal mess for the heirs.

    A survey and great clarity as to the exact position and width of the right of way would add value to the property (and probably make it saleable in the future). As would spelling out in no uncertain terms how the road is to be maintained, who is responsible for paying for what, etc.

    There have been several long and very painful threads on this board regarding rights of ways which went bad... one sticks in my mind that went on for ages and pages and then... the guy lost in court! I remember being completely shocked since his position seemed so reasonable and well documented.

    Just because you can do things on a handshake now doesn't mean you don't want to cover thy butt against the future.
     
  6. moopups

    moopups In Remembrance

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    It surprizes me to see this subject surface again, it has been discussed so many times before. But then I see that the posting count is so 'new' here. In the archives, (click archives, then 'counytryside', and scroll down to the 'land' catagory) there is over 400 questions about this same subject. There is also a great many answers there also. Sorry posters,its just getting a bit stale to see the same questions come up again and again, when the answers are stashed for you allready.
     
  7. rambler

    rambler Well-Known Member Supporter

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    Ah, welcome to financial & social heck..... Easements are usually a nightmare.

    You are not clear on where the access road runs - through a third party's land, or through your or your friend's property, or on the border between your property?

    In any case, you need to set up where the access is located and how wide it is (survey).

    Who owns it (someone needs to own the property to pay taxes on it), who gets to use it, and who pays to build it, who pays to maintain it (snow, regrading, add gravel, etc).

    All of this gets documented on all the various deeds. All of it!

    Then you have the liability issue - who's insurance covers the access road vs who gets to use it? Somebody owns the property, someone else is allowed to use it. Any kid gets hit on his 4-wheeler on the road, and _everybody_ gets dragged into the lawsuit....

    Can you or they or a thrid party put a gate on the road? Because this property is off in never-never land, it is very hard to regulate & deal with. It i shared, and any of the parties involved today can change how they feel, or sell the property tomorrow to someone who feels very differently about all this, and not want to share the same way.....

    Most counties around me have very specific rules & regulations on all this, so you might as well start at the courthouse & find out what you need to have. They get into dealing with _so_ many disputes over these easements that they have _really_ cracked down on this issue around here. They are tired of all the complaining over this issue.

    Good luck, and may you never get the 'bad' neighbors that make these easements a real nightmare...... Spend the money & set this up very, very proper. You only get this one chance to protect yourself. You need a lawyer. Seriously.

    --->Paul
     
  8. SteveD(TX)

    SteveD(TX) Well-Known Member

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    If you are splitting it up, you will need a new survey. When you bought it, you should have an old survey that showed your road that you own. This can be designated as a "shared access easement" or private road. Make sure that the easement is a properly worded legal instrument that can be recorded with the local county clerk. Most surveyors can do this but you should consult a real estate lawyer just in case.
     
  9. PezzoNovante

    PezzoNovante Well-Known Member

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    What you want is called An Easement by Necessity.
     
  10. witness

    witness Member

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    Thank you for the information.