If you buy land that does not directly abut a public access road, your property is said to be landlocked. Put simply, this means that you cannot gain access to your land unless your neighbor grants you a right of way over his land to the road frontage. The best way to secure a right of way is by deeded easement. This is a legally enforceable right transcribed in a deed which, if drafted as an "easement appurtenant," will attach to your land, such that the right of way benefits your successors and burdens your neighbor's successors.
Speak to your neighbor. Ask him or her to grant you a formal easement by deed. Your neighbor (the servient, or burdened landowner) can give the easement of his own accord, but he is not obligated to do this. The chances are, you will have to negotiate a price; an easement is, after all, an interest in land, which has a value attached to it.
Identify the type of easement to be granted. If it is an "easement appurtenant," you must clearly identify the extent of the benefited property. If the right is for you alone and not for your successors, it is an "easement in gross." The type of easement will impact its value. If your neighbor agrees in principle to the grant of the easement but disputes your offered price, appoint an expert easement appraiser to assess its value.
Appoint an attorney to draw up the easement deed. He or she will verify the identity of the grantor and ensure that any lender with a mortgage over the burdened property consents to the grant. You will need to draw up a map of the access route and specify its dimensions. Refer to the map in the easement document and attach it as an exhibit.
Take care with the drafting. Simply granting a right of way over the easement land is not enough. If the right is for pedestrian and vehicular access, say so in the deed. If it extends to use by your visitors, contractors, employees and so on, say so in the deed. If you need to use the right of way at all hours of day and night without restriction, you must say so in the deed. Be clear whether the easement is permanent (perpetual) or temporary. If it is temporary, specify without ambiguity the date or the event which brings the right to an end.
Try to establish an easement of necessity or by implied grant if your neighbor will not agree to a deed. Easements of necessity are implied in circumstances where land would be unusable if an easement were not implied. Landlocked land is a classic example. To establish an easement of necessity, you will have to prove that your property has never had direct access to a public road, or that it was previously part of a larger tract of land which had such access. Appoint an attorney to research the matter and file your claim. If the easement is disputed, the matter will go before a judge.
Prove that you have been using the access for a long, continuous time. If you can show that you (and your predecessors) have used the access with the burdened land owner's full knowledge, but without his permission, for a sufficient period of time, you may be able to claim an easement by prescription. The length of uninterrupted use is very long, typically 20 years or more.
- Be sensitive to your neighbor's needs. He might not want heavy traffic passing by his home at night. The easement should balance the needs of both property owners.
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