No Easement, No Driveway, No Access

No Easement, No Driveway, No AccessWithout an easement, you won’t have a right to keep a driveway and may lose access to your home.

Q: I purchased two lake lots from a landowner in 1983. The lots did not touch on the road we use to get to our property. When I asked the owner how I could have access to our lots, he told me just to cut a road into through his property.

This we did and have maintained this road and used it continuously since the purchase in 1983.

Recently the property was sold at auction to a man that is in the real estate business and I have approached him for an easement to use the road I put in years ago. He has not replied except to offer to sell the acreage to me at three times the purchase price at the recent auction.

Can you advise me on what rights I have in requesting this easement to my property and how I should approach this new owner to secure access to our property.

A: You pose and interesting question. Easement law can vary from state to state, but there are certain fundamental easement principles that resonate in your question. Generally, you can obtain an easement when you are expressly given an easement by the owner of a property that will be burdened by the easement. There are times you can also obtain and easement from a land owner when the easement can be implied under the circumstances.

When you purchased your lots, the lots had no road access and may not have had other access. Given that your lots had no access and may have had no value you could not access them, you might be able to make the case that the seller of the lots gave you an easement to those lots.

While you usually would want an easement to be in writing and you’d want that easement document to be recorded in the office that is responsible for accepting real estate documents for recording, there are times that even without a written document you can create, obtain and keep an easement in place.

It’s possible that your purchase of the lots and the seller’s acquiescence to your constructing a road to access your property gave you legal rights that may rise to being considered a permanent easement.

But here’s where you might have hurt your case: If you have now request an easement from a new owner, you may be conceding to that new owner your rights to the easement and acknowledging that you don’t have an easement, depending on the case law in your state.

You used the land for the road for almost thirty years and you may have right to continue to use that road. Before the land was sold, you should have obtained a document to protect your interest in the road from your neighbor (you should have done this many years ago). If you didn’t do that, you should have gone to an attorney to research your rights to the land. That attorney might have told you that you had specific rights to the access road and would probably have told you not to approach the neighbor once the land transferred title but to continue to use the road as you have for almost thirty years.

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What you must do know is speak with a knowledgeable real estate attorney in your area and that understands the law of easements. You need to find out if an easement was created at the time you purchased the lots and built the road. And you need to know what you now should do to protect your rights to the access and continued use of the road. You may not need a “written” easement from the neighbor if the easement was created a long time ago.

But if an easement wasn’t created when you purchased the lots and you only received a temporary license from the prior owner to use the road, you might be in trouble. Licenses are generally personal in nature and don’t generally have the same permanent status as easements. Furthermore, many license agreements can be terminated at the will of the party that granted the license.

Given these issues, you’ll need to find out how to proceed in accordance with the manner in which easements and licenses are handled in your state.


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