Road with no easement?

Hi Everyone,

The property I am looking to buy has never had a site survey and so we are going off the deeds (from the 1950's!). There is a gate and dirt road that looks to be on the property, yet there is no easement I can find record of. The seller is not willing to pay for a survey (he is elderly and it will cost $10-15K) and I don't want to risk that type of money if I pull out of the deal. The road is on one side of the property in an area I would not really use. I would appreciate any advice on next steps and potential issues and liabilities.

Thank you
Nick

Nick, easement laws vary from state to state and province to province, so the first thing to do is research easement laws wherever the property is located. There are different kinds of easements. It's likely you may end up having to contact a real estate attorney if you want to understand all the potential problems and protections. Especially, considering neither party is (understandably) willing to pay for a survey. My husband and I had a survey done about ten years ago and it was "only" $800. Maybe prices have gone up that much since then, but I'd definitely shop around if it comes to that.

Leigh has given you some great advice.

I also recommend talking with a real estate attorney. Usually, a consultation is at no charge.  I feel this is a good learning experience.

Even if a person is paying cash a survey is well worth the expense.  Without a survey how would a person really know what they are buying? There are different kinds of surveys so $10 -15K sounds really high.

We have had several done within Leigh price range.  We have even gotten a "just shoot the lines" even cheaper.

Regarding the fact that there is no easement could be a potential lawsuit for either you or the people that are using that road.

Agreed, you likely need a local attorney. This may fall under the concept of adverse possession. The other parties may be able to claim ownership, depending on how long it's been.

Nick,
If the property you are looking at borders the public road why would you need an easement?  If you have to go down the dirt road to get to the property then i would listen to the advice already given.

Perhaps I didn't understand.   Does someone else use the road to get behind the property you are looking at?  Depending on the state you live in you should be able to go to the county courthouse and check the records to see if an easement has been attached to the land you are looking at.

Is it possible to determine if there is road access to the other property from another direction.
If so you may be able to get them to use that if you purchase.

I dont understand how land can be traded if its not been surveyed?
What are of land are we talking about?

John, cash sales and owner-financing type deals do not require a survey. Unless the buyer requests one in the contract.

Mortgage companies, lenders, and banks usually require a survey unless there is a recent one in place.

Also, while easement laws do indeed vary by state, most states have provisions for easements that aren't officially recorded on the deed. If the only way to access property A is through property B, an implied easement or easement-by-necessity is almost always legally granted, for instance, and will be upheld in any court. Easement by prior use is also usually covered; if, for instance, a road through property A has been in continual use since the owners of property B bought their land, it's also usually considered a legal easement, even if unrecorded.

Easement law is fairly complex and doesn't come down to what's on the deed, a lot of the time. You might need to get together with the neighbor in question and maybe split the cost of an attorney's consultation, if it comes down to that? (I'm not an attorney myself, but I've dealt with easement issues in three states now. All worked out fine, once the legalities were clarified.)

Have a road through my property and it has a well documented easement however, before I purchased the property I spoke to the person who owned the property that had the easement.  I would look at the assessors records for the property the road leads to and contact the owner, they might/should have a copy of the easement documents and if there isn’t one you can come to an agreement.

Nick,

I have been following this thread for a while but held back on commenting.  I have to ask a couple of questions first though.  First, are you planning a cash-up-front deal for the deed to the land?  This is tempting, but I would really want to see the deed first.

Secondly, are you using a realtor or a real estate lawyer?  This costs money, but they are experts in finding just these type of issues in land transactions.  When I bought my property I had to do so with 2 easements.  This is OK, but I am glad that I knew about them in advance.  If you are unsure about the legalities of the purchase and are not an expert in real estate yourself, I would highly recommend hiring someone who is an expert.

Third, you will want to know what the taxes are that you will pay once you own the parcel of land.  They will almost certainly be higher than what the current owner pays.

Last, a brief anecdote. I know a person who thought he found the PERFECT plot of land and bought it in cash he thought he had (long story here).  But what he did not know was that the place he planned to build (just about the only buildable spot on the whole, highly sloping plot) was on an easement for the power company.  He now owns a piece of land that is practically unbuildable, and even if he were to build in an almost buildable spot, he would have to shell out a LOT of money to get a foundation that would be sturdy on a very steep slope.

Long story short, I would want to be VERY certain of the legal details before I bought or you might end up up owning something that you did not want or did not know you had on the property.

If you go through a bank, they will require full legal documentation.  Conceivably you could go through a bank to borrow the money (or just some of the money) and pay it right back immediately so as to not incur loads of interest.  And right now interest is at rock bottom rates.  I totally understand wanting to side-step the bank, but maybe you could make the bank work for you rather than you work for it.

I guess the bottom line for me would be that I would want to be fully informed before buying.

I wish you the best of luck.  There has been a lot of very good information already made on this thread, but in my limited experience of real estate transactions (a total of 3) caution is warranted as when you buy the property, you buy everything attached to it such as easements or liens against the property.  Again, I wish you the very best, I just want the transaction to work out the very best for you.

Eric

Hi Eric,

In the past 10 years a multi state store build new in my area.  Then they found out about the deeded easement that ran through the middle of the parking lot.  The wrong person held that deed. They ended up moving a couple of light poles and their sign.  

John,

Wow!  You would think that a multi-state company would have the real estate down perfect!  This is a great example about why you want to get all the physical description, deed and easement information, tax information, etc. before buying.  Sounds like the company got off easy, but I bet that an individual would not have the finances to rectify such a mistake in a real estate transaction.

On a slightly different note, I do have to give credit to real estate professionals.  Although they cost money, they do know the ins and outs of real estate.  I know of a person who purchased land, put down earnest money, and the night before the contract was to be signed, the deal almost fell apart.  The reason was that the seller (who acquired the land using gifted real estate information and did not understand taxes) thought that by selling BEFORE the tax bill was due he would be spared the tax bill, even though the bill was for the previous year's taxes.  The realtor spent 2 hours on the phone late that night and agreed that the buyer would pay the taxes if the seller lowered the price by the tax amount.  This was about $400 on a $50,000+ plot of land--trivial in the grand scheme, but illustrates why one needs to know (or at least have professional assistance) all the details of land purchasing.  As it stood, having the buyer pay those taxes meant that they could be deducted from income tax, so it was actually a win in the end.

Of my whole 3 real estate transactions, I was amazed at how many different, specific pieces of information need to go into the deal before the deal is signed.  I would never possibly know all these specific legalities by myself, but my realtor (who I trusted) certainly did and saved me some real headaches.  My lesson was that when going into a real estate transaction, I needed to know every little detail there was.

Great example John,

Eric

Hi Eric,

There are many shades of gray in the story I related. I do not know the details. I do know the company planted the sign that blocked the individuals driveway, which was a jerk thing to do.  I suspect the deeded access had not been regristered at the court house..of course, I do not know for sure.  But, with those 2 elements in place, it does not take too much imagination to see where a hostile interaction could be in the making.  Because, the signs and light poles ended up being moved, I have no doubt as to the "winner".