Access To Property Needs To Be On Record

Q: My husband and I bought 100 acres of land last year. Our seller sold us a portion of his land. Prior to closing on the purchase, the real estate agent advised us that access to our land was through an old county road that had never been closed.
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This "old road" had not been used in quite some time. It had mature trees and brush on it preventing any type of vehicle from using it. We were assured that the county was going to reopen this county road that summer. Until then, we had permission to use the seller's farm field to access our property. Our contract was contingent on the county road being reopened and the seller giving us permission to access our property through his until the county road is opened.

Well, the county has yet to re-open the road. We told our real estate agent that we would like to forget the county road and get an easement through the seller's property. The seller is reluctant to give us a recorded easement because he feels it will affect the property value of his land which is currently for sale.

Since the easement is not recorded, but is listed in our contract as our means of ingress and egress until the county opens the road, will it transfer over to the new owners of the or seller’s property should he sell before the county opens the road?

A: If I were you, I would run to my attorney’s office and make sure that there is some document placed on record to give you access to your home. Any potential buyer of your seller’s property must be placed on notice that you have a continuing right to use his land until the county road is opened. You don’t want to be in a situation where you new neighbor knows nothing of the arrangement and you have to fight to have access to your land.

There are some legal principles that might give you the continued right to have access to your property, but the risk of having a fight with your new neighbor once the land is sold are too great. You need to make sure that you have the right of access.

There is one thing you should have done before closing: You should have required the seller to give you a written easement giving you the right to access your property until the county road was open and available for your use. You would have had more leverage than you have now.

If the seller refuses to give you the easement now, you will need to discuss your options with your attorney. He may advise you to sue the seller for the easement, record a document along with a copy of your contract to evidence the right of access given to you by the seller.

You need to act fast before the property is sold and the new owner claims he knows nothing of the arrangement, is not bound by it, fences his property, and prevents you from accessing your property.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com