When considering the purchase of any kind of property, how to get onto the property is a crucial aspect of what is known as “full use and enjoyment” of a property. This is true of everything from a condominium, city home, lake cabin, or vacant hunting land. Usually this isn’t even thought of in city lots or developed subdivisions because those properties all butt up to public roads or streets, however where access can become a real issue is with rural properties such as vacant land and cabin properties. Let’s take a closer look at the issues and what can be done to remedy or avoid them.
Property that does not abut a public roadway or other right of way and that does not have another means of legal access, sometimes referred to as “land locked”, is property that has no legal means of getting onto it without trespassing on someone else’s land. When you look at them, the only practical way of access is by flying in and out. Now if you happen to own a helicopter, airplane, or perhaps jetpack then maybe this is the solution, however for those of us that don’t happen to be Bond villains, it is a definite problem. Even so, sometimes the pitfalls aren’t as obvious. Consider the following common examples:
- You are looking at 40 acres of land locked property, however this 40 borders county or state owned land which then butts up to a public roadway. There is even a logging road that runs from that public roadway to the 40. The seller has been using that logging road to access the 40 for years and has never had any problem with it. At first glance this may not even look like a land locked property, after all the logging road is on public property. In cases like this you need to consider what could happen in the future not what is the access like right now. Without a permanent and recorded easement (more on these later) the usability of the public land could change. The purpose of the public land could change which could restrict motor vehicles or even foot traffic, there could be a storm causing blowdown which block the logging road and which the county or state has no money or desire to clear, the land could be turned into a conservation area which prohibits motor vehicles. The property could even be sold to a private party who decides they don’t want to let you trespass to get to your 40. There are countless possibilities most ending up with you searching Craigslist for a used but low mileage jetpack.
- You are looking at another land locked 40 acre parcel, this time it is bordered by a neighboring privately owned property which abuts a public road. There is a trail that the neighbor allows the seller to use and the seller says the neighbor will extend the same courtesy to a new buyer. Very similar to the first example, things may be fine now, but could change at any time and without warning. No matter how nice the neighbors are, permission, whether verbal, implied, or written, can be revoked. Not only that, it is likely that at some time your neighbor’s property will change hands and who is to say the new neighbors will have the same attitude towards granting access as the current ones. Imagine pulling up to go hunting on opening weekend and finding a chained gate blocking the trail that you had previously used.
- You are looking at a land locked parcel. The seller says she has an easement that she’s used for years over the neighbors land but when asked she says it is not recorded. In this case some further and careful examination is in order. The easement may or may not exist. If the documents that grant the easement can be produced then a purchase may be in the cards. In cases like this it is sometimes best practice to engage an attorney that specializes in real estate matters to look over the situation and ensure your position is properly protected.
What is an easement?
An easement is a right to use a property granted by a property owner to another person or entity. These rights are usually very specific in what can be done and where. For example if you have an easement over a neighbors property to access your own, that easement document will probably stipulate where on the neighbors property you can use as the easement, for what purpose you may use the easement (for example you can use the easement to travel on but you can’t build a cabin on it), and who is responsible for maintaining the trail or road. An easement can even restrict who is allowed to use it (for example you could use it but cousin Eddie is not allowed to). The most common types of easements that we encounter in our work are access easements and utility easements.
The documents establishing an easement are frequently created with the help of an attorney and it is recommended that they be recorded with the county just like deeds are, they encumber one property and benefit another.
Easements don’t just come up as issues with raw land deals. Don’t assume that because a house or cabin has been built on a property that all access issues have been resolved. Town & Country Team member Dave Mathes recently represented the seller of a lake cabin where the seller’s driveway was cut off from the road by a few feet by a neighboring property. The seller had permission to cross the neighbors land but during the negotiations of a purchase agreement with a buyer it was discovered that the permission would not transfer to the buyer. The buyer, rightfully so, required an easement be established as a contingency of the purchase agreement. The seller and neighbor were able to negotiate the terms of a permanent easement and the sale closed, however the sale could very well have been in jeopardy if the neighbor wasn’t in the mood to negotiate.
There is more to easements and they can get complicated in some situations. If you find yourself in a situation involving easements that you don’t understand the best advice is to seek professional help from an experienced attorney that specialized in real estate matters. The bottom line is that if you are a buyer of a land locked property take a moment to ensure that you understand how the property is accessed and if a suitable easement exists.
Are you in the market to buy or sell a property in Minnesota or Western Wisconsin? Whether it involves an easement or not the Realtors at the Town & Country Team have the knowledge and experience to guide you through the sometimes unexpected situations that can arise during a sale. Give us a call at 651-362-0123, we’d be glad to talk with you.