I’m interested in purchasing a property that, in the past, was owned by the neighbor. The current owner has allowed the neighbor access to his remaining property via a small road (Its not the primary access for the neighbor, but lets him get to the back of his property). I find that there is no formal easement agreement that will permanently grant access for the neighbor to the back of his property. I don’t know if its been more than a verbal, “gentleman’s” handshake, nor do I know how long the road has been there.
I’m inclined to NOT request or pursue a formal easement agreement as I see this will make the arrangement permanent and binding to me. I’m ok with the current arrangement without the official easement.
It seems, too, that its in my neighbor’s best interest to have such a document, but not necessarily mine.
Are there any pitfalls, or issues that would cause me to desire a formal easement agreement, whereby I officially grant him some rights to my property. I suppose insurance claims should he be hurt while traversing my property, but I’m not sure an easement would prevent that either.
If he continues to openly access your property without an actual agreement, he may end up with an easement by adverse possession.
Probably the best thing to do (assuming you don’t actually want to cut the neighbor off at this time) is to have a lawyer draft an agreement where the neighbor pays you some token sum to rent access, and it’s clear that you can revoke permission in the future if you feel like it. No permanent easement, no adverse possession.
Is the small road a convenience or a necessity to access the remaining property? If you denied access, could the neighbor get to the property on existing roads?
yes he could, but it would be much more difficult. He has a lumber mill in the back, and it would be difficult or impossible for his trucks to access this building from the main road by the house.
If it is permissible use, it is not adverse possession. Adverse possession must be done “hostility” or as the term implies, adverse to the true owner’s interest. However, many states have laws which prevent “land-locked” property and hold, in short, that if you sell someone a piece of your property with no other access, it automatically comes with access through your remaining property in a “reasonable” manner.
I used to own property with an access easement though someone else’s. This was rural farmland in a hilly area. The main issues there tended to be who is expected to maintain the road, and how heavily is it used by whom?
If it’s just a little trail that really doesn’t need any maintenance and is out of the way a formal agreement may be a burden. On the other end of the spectrum if it’s a big swath of your land that the other guy is regularly running lots of heavy equipment back on forth on, and he expects you to blade out all the ruts and re-gravel every year, then you might want to look into it.
Especially if he is making or saving a sizeable chunk of income by running his business without the expense of owning or installing an access trail of his own. I’d say it generally comes down to money: how much does it cost or make each of you to keep access as-is?
Big-money business like oil companies just automatically require and pay for access. I used to get paid $2,500 per year for an energy company to use my driveway a few times a year. That kind of deal might push a small business owner right out of business, so it depends on your specifics.
Agreed. I understand if the guy needs access to live in his house or to merely access the property, but to operate a lumber mill on the property when his only real access is through YOUR property is taking advantage of kindness. He should not be subsidizing his business by using your property. I would get a lawyer and negotiate the price of an easement.
Basically an open use of property for a certain number of years that is never contested. It can be hard to shut that use/right down.
This happened to my Wife when she sold a property. A neighbor was using a piece of it to park on. Wife didn’t care, and property lines where not at all obvious. The ILC (a type of survey) required to sell the house noted the land as a parking area, but not a parking easement.
When she sold the property, the new owners tried to block the right, and took it to court. I don’t remember the entire outcome but some 50/50 agreement was reached.
I work in GIS, and people sometimes come ask us how long an access has existed. A good way to figure this out is from old aerial photos. A place to find them is sometimes (at least in my case) county government.
I would think so too. Some other codicils such as maintenance (already mentioned) and allowable use (weight limit, hours of use) might be a good idea as well.
I had a friend that had a similar issue in that she did not own a portion of the road that served as her driveway.
She just didn’t like the idea of the easement in general. She worked out a land swap with her neighbor, trading a small piece of her plot that was adjacent to her neighbors property in exchange for the part of her driveway that wasn’t hers. So now she owns her whole driveway and her neighbor has a slightly larger back yard.
This may or may not be feasible, depending on the exact layout of the properties and the disposition of the neighbors. And it was more work than an easement, because they had to file a new survey, etc. But it was a nice permanent solution that avoided some of the issues involved with easements.
IANAL, but if it were me, Id want to define the width of the lane, the type and frequency of accepted use, and the acceptable weight of the equipment to be used. If he should suddenly decide to kick his business into high gear, you could wind up with a really unpleasant situation. And it’s already one which he apparently wouldn’t contemplate having drive past his own home.
Totally agree. The neighbor making income via the road on your new property should not expect a free ride. Maybe he and the seller had a buddy-buddy relationship. Will you be pals too? Whether or not, make a business deal - not a deeded easement, but a paid rental of your road to use within specified limits.
I’m neither realtor nor lawyer so you’d probably help yourself by consulting a pro.
so the weather permitted a visit with the neighbor, and it looks like he understands this is my road and I’m giving him permission to use it. Based on these comments and some further research to avoid a prescriptive easement I posted a couple of signs basically stating use of the road was by permission that can be revoked.
Update
I wanted to post new images of new signs I just erected. Mostly this is so I have a public record of when these signs were put up; but I’m always interested in advice on this and going forward
I ain’t no lawyer, so maybe I shouldn’t post in this thread.
But my guess is that posting this sign won’t have much value if you eventually go to court. It might even hurt you.
Here’s my guess at how a lawyer might challenge you:
By posting the sign, you are legally obligating yourself to enforce it.
You know the road is being used, you know by whom it is being used, and yet you continue to allow him to use, and do not challenge him, even though you could easily do so with one phone call, or you could easily block the road with a simple gate. On the same day that you put that ladder up and nailed the sign to the tree, you could have nailed a couple pieces of lumber together to make a simple barrier.
By doing nothing to stop him, and providing photographic evidence that you chose to do nothing, you are giving your implied consent to his ongoing use of the road,. So the sign saying “without consent of the owner” is irrelevant–you have already given your consent, with or without the sign.
(Now, maybe the lawyer Dopers who read this are laughing at me for posting such a stupid idea. Or maybe they’re saying, “gee that guy is smart enough to be a lawyer”. I have no idea. Anybody wanna tell me? )
I really think it’s worth spending a little money to get a lawyer’s take on the scenario, and then draw up some sort of document that spells out the rights and responsibilities on both sides - with specific time limits, and whether or not any money or other consideration changes hands.
How close to your house is this access? Has it ever been, or is it ever likely to become, a nuisance or hazard to your property, or to your enjoyment of your property?
Is appearance a concern?
What about maintenance of the route? I assume it’s not paved or gravelled; what about regrading due to ruts or washout? Who would do that?
Might this be used by anyone other than the specific neighbor? i.e. does it give access to anyone else’s property? If so, do you care if others use it?
Any animal concerns (wildlife or pets) due to the trucks?
My knee-jerk thinking is:
Great to be a nice guy and help the neighbor out
Don’t let it cause YOU any problem or inconvenience, especially if you are not collecting money
Require the neighbor to handle all maintenance concerns - regrading, cleanup of debris, etc.
Have the neighbor handle any landscaping issues: not sure what those might be, but there might be more erosion due to dirt vs ground cover, or whatever.
Make sure you’re not potentially at legal risk, e.g. if the guy has an accident on your property
Have a signed agreement on both sides with a specific time limit, that you can revoke if need by with x months / years of notice
The agreement should state that “does not constitute a permanent easement; sale of the property does not guarantee that this access will continue under the new ownership” or something to that effect.
State what hours of the day the access can be used - I mean, I suspect there isn’t much happening in the logging / lumber mill area at 2 AM, but are the trucks gonna come roaring through at 6 AM when you’re trying to sleep?
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