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Help settle a friendly argument

Discussion in 'Off Topic Threads' started by amboy49, Sep 27, 2009.

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  1. amboy49

    amboy49 Well-Known Member

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    So my friend are I are having a friendly discussion re: real estate property rights - neither of us are attorneys. He was a real estate broker for 30+ years and I worked in real estate finance for over 30 years so we each pretty much think we know it all !

    The question is hypothetical -

    Years ago a piece of property was sold to an individual that was actually landlocked. The new owner, although not by vitue of a for recorded easement, crossed an adjacent landownner's property via a driveway to reach the nearest public road for years.

    Then the property owner whose land was being crossed by the "landlocked" property owner chose to sell his property. When the new owner discovered the landlocked property owner using the driveway that has been in use for years an argument ensued.

    The "landlocked" land owner asserted no one had the right to land lock anyone and he was legally able to demand the "new" property owner allow him to use the "non recorded easement driveway."

    The land owner whose land was being crossed asserted he purchased his land with no recorded easement and no one should be able to take his property to use for a driveway.

    My real estate friend insists the "landlocked" party has a right to reach a public road and cannot be prevented from accessing the road over his neighbor's property.

    I am arguing the "landlocked" neighbor doesn't have the right to cross the neighbor's property and doesn't have to be provided an easement by his neighbor. The landlocked property must file suit against the people ( or his heirs ) that sold him the property

    Attorney's or others please feel free to weigh in.

    Believe me, I'm not looking for free legal advice. This isn't a real issue for me or my friend - we've got a bottle of our favorit adult beverage bet on the answer !
     
  2. sliverbulletexpress

    sliverbulletexpress TS Member

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    Not an attorney, but I believe the landlocked owner has a good chance to win in court since it he has an long established right of way even if not on paper. Seen this before and that is the way it turned out. Especially if their is an occupied dwelling on the landlocked property, you can't block access to emergency services, fire, ambulance, and such just because.

    New owners move in and think they are Ben Cartwright just because they own 4 acres and try to block the road. Usually uhemm northern city dwellers who've retired to one of the free states who try this type of crap.
     
  3. 221

    221 Banned User Banned TS Supporters

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    Seems the seller was obligated to disclose the access, and the buyer was the fool for buying without knowledge of it or without inspecting his purchase. I own property with a recorded easement, that looks like it may end up taking lawyers to resolve. Personally, I would block it and see what stuck......I would probably lose but I would force the others hand.....considering the liability issues of today.
     
  4. Rollin Oswald

    Rollin Oswald Active Member

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    If I recall correctly, the easement would stand if the time it had been allowed by the selling party was sufficient (10 years in wisconsin law?)

    Rollin
     
  5. foghorn220

    foghorn220 Active Member

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    Ok in KY I think if you do stuff for 7 years then you can claim it like maintaining the strip between the neighbors or what ever and they don't complain about it.
    All right this was long ago so might not apply now days.

    Ok I know my dad sold about 30 acres of land to a guy that now has a gravel pit and concrete plant and he bought it with a temporary access to the new 4 lane road out front well I guess he is still doing the temporary thing but that was over 20 years ago so it is in who you know and who you blow I guess.

    Fog
     
  6. ricks1

    ricks1 TS Member

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    Its up to state law. WV you can land lock the property and you can also barr utitlies from getting to it. I did it to a guy and won in court and then got the land. I know I am a A hole but he started it and I finished it.
     
  7. Texas Ton

    Texas Ton TS Member

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    amboy, I'll bet you'll need to give state of residence to ever get an attempt at a good answer but I'll bet, and attorney will have to give his 2 cents but I think a judge will have to be the final call.

    The only time I've been in such a predicament was over Grandparents willed property which had a similar issue. Even if someone had been allowed access for years, it didn't mean you couldn't stop them as long as there was another way into the landlocked property.

    To make it short, this one was in favor of the landowner who was being trespassed on. But only because there was another way in (though over a mile further), and it was determined that "less possible" damage would be incurred on the new, but longer route.

    The guy that fought for the old way of getting in, at his expense had to create a modest road, build a gate and new corner post and finally was able to put in a cattle guard.

    The sticky part (according to the judge) comes when the party that's been using someone elses road, has done a "substantial" (determined by the judge, again) amount of work on this road and both parties used the road he had done work on. Doesn't seem right to me but that was a factor.
     
  8. foghorn220

    foghorn220 Active Member

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    Ok if you had neighbors like I do in western KY then there would be no problem because most of the time he mows a lot of my yard when ever he mows but yesterday I mowed a lot of his since the line is sort of wide open but if I had a full blooded Yankee moving next door and didn't want to act neighborly then I guess i would have to protect my A%% but im glad I will never have that problem for years to come since im out in the country with good neighbors ok after im dead and gone then it is not my concern anymore.

    Foggy
     
  9. shadow

    shadow Active Member

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    If you happen to ;ive in Ky the law is very clear. You cannot deny anyone access to their property at any time. Easement or not.
     
  10. Bruce Specht

    Bruce Specht Well-Known Member

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    Squatters rights? How long was the driveway in use?
     
  11. birdogs

    birdogs TS Member

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    As stated above, each state has its own definition of the number of years such use (crossing of the neighbor's property) must occur before an easementn of use can be successfully claimed and defended. One of the key considerations is that the crossing of the property must be "open and adverse". This meand that he had to cross the owners property openly and that such use was "adverse" to the owner's interest. If he received permission from the owner it could be argued that the "open and adverse" condition were not met and therefore no easement of use exists.
     
  12. Mapper

    Mapper Member

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    Well, I am not an attorney and I see none of them responded, as such. However I have been a surveyor/map maker since the 50s. And the bulk are correct. It depends on the state. Adverse possession is judged differently in different states, as some of the answers imply. However, in Michigan, if there is a dwelling, just move in a bunch of kids. As I understand it, access must be supplied for school children. You might have to helicopter them in, but they can walk out.
    Mike
     
  13. 221

    221 Banned User Banned TS Supporters

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    Ultimately if this goes to court the party who hires the newest associate from the most prestiges law firm will prevail. You can hire a young miracle atty on his own and that Ivory Palace Firm can send the Janitor ,,,,,,,,He, willing to drop the biggest wad of cash will prevail. This will be handled more along politics that statutes.
    Kinda like Probate,..thats another circus that Money talks and BS walks.
     
  14. DJM

    DJM Member

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    I took a hard look at a piece of landlocked land in MN. At the time I was told that I could not be denied access to that land. But the legal proccess to gain the legal access may outweigh the value of the land. There were multiple adjacent landowners. Best if I could strike a deal with one for an easement. If not the process would eventually place the decision into the hands of a judge. A ruling would be issued and the landowner chosen by the judge would have to sell the easement at a price set by the court.
     
  15. ebsurveyor

    ebsurveyor Member

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    A proper land survey would have prevented this problem. So called "real estate professionals" usually recommend "a survey is not necessary". What state are you in? Each is different, you know.
     
  16. fssberson

    fssberson Active Member

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    "prescriptive easement n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion."

    This is probably on every real estate license test in every state that issues real estate licenses.

    If the new landlocked property owner had purchased a title insurance policy, the title insurance company probably would have looked for an easement recorded in favor of the landlocked property. If so, the issue would have been resolved prior to the close of escrow.

    If the landlocked property had been purchased subject to a loan, the lender would have required a title insurance policy and the title company and/or the lender could have easily seen the absence of an easement on the parcel maps attached to the abstract.

    If the landlocked property was purchased through a listing with a competent real estate broker, the broker, as part of his due diligence when taking a listing would have determined the availability of a recorded easement in favor of the property.

    But, if the buyer just acquired title through a private transaction without any professional review, in all probability all he would have to do is demonstrate that a prescriptive easement had been established over the period of years required in that particular state's laws. This type of action would typically be referred to as a "quiet title" court filing. If the conditions of a prescriptive easement had been met, the court would direct that a survey be conducted and the easement established through an easement agreement which would then be included in the title abstract of all the properties effected.
     
  17. spitter

    spitter Well-Known Member TS Supporters

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    Not an attorney, but from my recollection, there was a term, possibly
    a "prescriptive easmement", which I think required open use, not otherwise approved and allowed for continued use. There was also another method by which is someone used property for a continuous period of time, openly and without contractual/conditional use, the user gained actual (adverse?!) possession of the property...

    Again, making no warranties on the correctness of the above, recollection from a real estate law class from many moons ago in IL.

    regards all,

    jay
     
  18. Recoil Sissy

    Recoil Sissy Well-Known Member

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    A variation on the theme...

    Assume Mr. Smith just bought some landlocked property. Although its surrounded by other private properties, the previous owner built a private road across a neighbor Mr. Jones. That road provides access to the Smith estate. And... the private road is covered by a recorded 'easement'.

    Now assume Mr. Smith breaks ground for a new home. Smith will need to extend utilities to the property which previously had no utilities. This will include at a minimum, electricity but could also include things like water, sanitary sewer, etc.

    Question: can Mr. Smith extend the new utilities along the private road so long as they are kept within the confines of the existing 'easement'??

    sissy
     
  19. fssberson

    fssberson Active Member

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    "...the private road is covered by a recorded 'easement'"

    Depends on what the recorded easement says, ingress and egress for access or ingress and egress for access and utilities.
     
  20. Old Doc

    Old Doc Member

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    I have a situation that is similar. Original land purchase had no easement and was landlocked. Original access was by bridge that had washed away about 40 years prior to purchase. Access was then over adjacent land owner, which in part was over another third owner by easement. Rural easement and landlocked easements are to granted over the nearest 40 acre line to the nearest public road as I recall. Can not deny access in Iowa. Further, the road on my property was found to be on a forth owner when a survey was done for conservation purposes. That owner was aware of the use and made no protest. Lawyers have yet to be involved and see no reason that they should. Rules of adverse possession come in here some place. 7.5 or 8's probably is more important. D Winter
     
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