The original deed to my house came with an “easement of ingress and egress to the nearest public highway”.
For more than 30 years (and numerous prior owners), that easement has referred to a path through the woods (my backyard) that leads to a parking lot and into town. The church that owns that lot is now erecting a fence to prevent us and other neighbors from walking through. The town lawyer says that easement refers to the street my house is on. I’ve never heard of needing an easement to use the street in front of your house.
Generally easements are fully described and files with the folks who control those things in your locality. Courthouse or such. If the 'street your house is on" wasn’t there when the deed was recorded, perhaps it is now “the nearest public highway”.
I’d advise contacting a lawyer specializing in real estate.
If there is another property between your house and and the street, then you need an easement. In such a situation, the easement is often implied in law, but I’ll let a lawyer tak about that. The deed should specify which property the easement crosses, and the deed for that property should also mention the easement.
If you, for some arcane reason, do not have the right to cross the sidewalk or enter the street adjoining your house without an easement, then maybe that’s what the easement is really for. It may be that the easement is no longer required, and will no longer be enforced by a court (shaky).
I do find it unlikely that an “easement of ingress and egress to the nearest public highway” would actually mean a footpath leading to a parking lot, but there may be history that makes this more likely.
We live on a cul-de-sac, no sidewalks, just a driveway. It’s been there as long as the house.
My backyard is woods going steeply downhill. The last five feet of woods or so belongs to the church. After that is the church parking lot (half of which is actually a public parking lot, still rimmed by their five feet of property). Through that lot is our quaint little downtown shopping area. Many of the original owners built stairs going down the hill inorder to get into town.
My understanding inderectly from one of the original homeowners is that the easement referred to that strip of church property that lead into the parking lot. She currently rents out the house next door but recently rebuilt her stairs (which was probably the cause of all this!)
From the initial responses, it sounds like the easement to my street is probably wrong, but I’ll still need to lawyer-up.
In many locales, a historical public path/road cannot be closed off unless the owner jumps thru some hoops. In some situations, depending on the local laws, once something has become a public thoroughfare, that’s it. It will remain one.
In my home state, the rules referred to being publically accessible 365 days a year. So large corporations would close off their parking lots one day a year, e.g., Thanksgiving.
You might have a case, but for a different reason than the one you think. Again, varies by locality, see a local legal person.
Let me second what minty green said. For such a common issue, this potentially raises a ton of difficult legal questions, the answers to which will vary by jurisdiction. You’re right, you’re going to need to lawyer-up.
As a real estate lawyer, I’ll have to chime in that this is one of those areas in which it depends a great deal on the detailed facts of the case and the law of your jurisdiction.
Unfortunately, for your question any advice you get on the internet is going to be worse than useless – following some of the things you may see online could impair some of your rights. You should contact a local lawyer with the facts of your case.
Look into prescriptive rights. If this has been in use for 30 years it will probably be very hard for anyone to take it away from you.
We had a similar situation on my wifes tiny little lot. Someone had used an area to park their car on for many many years. They had never been given permission. We thought there was an easement, but there wasn’t.
Since she hadn’t given them permission, and the use had been notorious, for x amount of years, we couldn’t revoke it. Crazy.
You may well wish to talk to a lawyer. But you should certainly go to the Registry Of Deeds and do some research yourself. (This is surprisingly easy to do.) What you are looking for is any reference to this easement in deeds to your property and those of adjoining properties.
Most easements are spelled out it detail. There’s a reasonable chance that with an hour’s work you’ll have in your hand a copy of a document that makes everything quite clear.
There is, of course, also a chance that the situation can be sorted out only by a trained professional. If so, try to get a recommendation for one who actually knows what he’s doing – not all do. When you go to him, show him the results of your research at the RofD – it will tend to make him less likely to consider you as belonging to the large mass of rubes that are easily bamboozled.
Nah…it’s more of a state of mind…
Fortunately, we know a competant real estate lawyer who’s going to help us out. Since the easement is so vague, he’s going to track down the title to the church and see if it’s referenced there. While the easement reference could be boilerplate, there’s certainly no reason (sidewalk, town property, etc.) why I would need it for my street.
He also feels there are other avenues to pursue…for example the fact that this path has been utilized for so long, among others may provide certain rights. He actually rattled off 3 or 4 ideas last night, all pending further information gathering.
" He also feels there are other avenues to pursue…for example the fact that this path has been utilized for so long, among others may provide certain rights."
Yes, I was wondering what that is called. Isn’t there something where if you use property for 25 years for it’s intended purpose, e.g. a path, that they can’t keep you from doing that?