real estate

Make sure to have easement to get to house

Steve McLindenDear Real Estate Adviser,
I'm about to buy a home on a rural "paper road." There are two homes on it. One has an owner who has an access easement written into his deed. The other is the home I want to buy, which has no such easement. How do I protect myself from someone claiming I have no access rights to the property?
-- T.A.M.

Dear T.A.M.,
Backing up for a second, a "paper road" is an archaic term used to describe a road that exists only on paper. They were usually planned as part of a more ambitious development and laid out on paper to indicate where water and sewer lines and other services such as street lights, curbs, sidewalks and stop signs might be placed. But there are several ways to get access rights to your property. If an easement isn't noted in your deed, it doesn't mean one doesn't exist. It may have been unwittingly excluded from a past deed of conveyance, or the previous owner of the property may have been using it under implied consent of the land owner. Make sure you reread the whole deed of conveyance because easements are sometimes buried toward the back. If you don't find it, try searching on the county tax assessor's website. Assessor records typically include each property in the county, lot lines, ownership data, roads both real and planned, and easements. It may well be that the owner of the access piece is the county.

Either way, it's up to you to get this straightened out before you buy. If the present owners are or were occupants, a conversation with them should obviously shed some light on the issue. There may have been some animosity between the old occupant of the home you want and the owner of the other home -- let's call him Mr. Hatfield. Sometimes, the lack of an easement indicates a long-standing land feud between adjoining property owners. That's all the more reason to have the title and deed history examined by a title company or even a real estate attorney, especially if that "M" in your name stands for McCoy.

I should also note that U.S. real estate law is geared to protect owners of a so-called landlocked property from not being granted access to it, a right known in legal circles as "easement by necessity." In fact, most states have clear provisions forbidding property owners from selling pieces of land or splitting them with intent to sell without first affording some form of access to the would-be purchaser of that land.

At the very least, you should have rights to an easement by necessity to the parcel, though it may not necessarily be the most convenient route in or out. You might consult a local land surveyor who can shed more light on the pros and cons of buying property without an easement. Or you could shift the responsibility to the current owner by making your offer on the property contingent on documented easement access. If things get too sticky legally, you might have to move onto another prospect.

So the short answer is that you need to protect yourself with documentation, or failing that, state law. Good luck!

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