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Buying LandOwning LandSelling Land

Legal Access, Right of Way and Easements

April 12, 2018

The most common reason that I’ve seen cause a land transaction to fall apart in Western NC is when there is a lack of legal access. Examples include one seller who owned land with a home she lived in for 30 years, but when the title work was done to sell the property, the attorney determined there was no recorded right of way to the property through the five neighbors despite her prior use. In other cases, I’ve seen neighbors unlawfully refuse to allow access through properly recorded easements to properties in order to prevent the sale of the property.

LEGAL ACCESS

The simplest access is when a parcel has frontage on a publicly accessible road. However, sometimes topography or water features will restrict access to the property from the road, or there may be one or more other privately-owned parcels between the public road and the property. When the property does not or cannot be accessed directly from the public road, an easement through the other properties for a right of way is required.

EASEMENTS

Easements, in general, are a written agreement allowing one party to use the land of another party. These can be tied to the land or tied to an entity.

An example tied to the land: one property owner may give an easement for a neighbor to install a septic system on their property. The owner granting the easement will retain ownership of the land but will be restricted in their use by the easement.  The owner of the land given the easement may only use it under the conditions outlined in the written agreement.

An example where is it tied to an entity: a power line easement where the power company is given the right to maintain the lines over another owner’s parcel. I’ve also seen cases where specific individuals and their heirs were granted the right to access the property to fish in a creek.

In all cases, easements exist until terminated or until they expire if that provision is made.

RIGHT OF WAY

A right of way is a specific easement granting access to a property over one or more privately owned property. It’s commonly described in deeds as providing ingress, egress, and regress from a property, across the land of one or more other properties, to a publically accessible road. It will also have a description of where access is permitted (preferably with a survey), how wide the access is, and if there are any restrictions on what may or may not be permitted with respect to the roadway.

Sellers will need to certify that the property they are selling has legal access to a public road in order for the property to be shown to buyers, otherwise, it is considered inaccessible or land-locked. Buyers will want to understand the restrictions of the right of way. For instance, many counties require a minimum width of a right of way in order to subdivide a property over a certain number of times, and other restrictions may limit how a buyer may use the access, therefore, making the parcel not suitable for their intended use.

WHEN ACCESS IS QUESTIONABLE

When sellers are preparing to sell a parcel and there is a question of whether it has legal access, I often advise the clients to have a title review done by an attorney so that we can use that legal opinion to clearly represent that there is legal access. Surveys also may help to clarify any confusion.

If it’s found that access is not available, there may be ways to get permission from adjacent landowners to provide access or attorneys may be able to file lawsuits for what is known as an easement by prescription to forcibly grant access. If a neighbor challenges the access, an attorney should be consulted to determine how to best enforce the agreement.

When buyers are buying a parcel, they should always have their attorney do a title search to ensure access is properly established.

I help my clients navigate this challenge and provide them with education and knowledge to make informed decisions. I also ensure they are working with the right legal, surveying, and other professionals to protect their interests in the transaction. However, I am not an attorney and can not provide legal counsel. If you currently have a problem with your property or have a specific question about an easement that burdens or benefits your property, I recommend you first speak to the attorney or title company that assisted you in the purchase. They may be able to locate the title commitment files, locate an existing title insurance policy, and can offer you legal advice on your specific situation.

If you’re looking for a professional land broker or need help understanding land issues like this, let me know! Pat Snyder, psnyder@nationalland.com.

About the Author
Pat Snyder joined National Land Realty in 2018. Pat is a retired US Air Force Officer with over 20 years of service and has several years of real estate experience. He is a Realtors Land Institute (RLI) member, Certified Negotiations Expert, and a Military Relocation Professional. He also serves as a board member on the Asheville Rotary Club and Blue Ridge Honor Flight. As a Land Professional in Western North Carolina, Pat enjoys educating clients on land sales and purchases and hiking properties with them. He also likes to work with other professionals to help his clients understand the opportunities and challenges of a land transaction, and help sellers get their land to stand out as an exceptional property to buyers before hitting the market. Pat holds a MA in Military Operational Arts and Science from Air University, a MS in Information Management Technology from Grantham University, and a BS in Management Information Systems from the University of Nebraska-Omaha. Pat enjoys spending time hiking, doing volunteer work and cooking. He and his wife Michelle have a son, Barrett, and a dog named Bacon. View Pat's Listings and Reviews on NationalLand.com