Right of Way

Q: Nine years ago, the city in which I live vacated a right of way adjacent to my home on my request.
 

The tax collector assessed the entire 25 foot strip to me because the land is in my subdivision and not my adjacent neighbor’s.

My neighbor is now suing me for half of this property suggesting that the city vacated the property to the respective adjacent property owners. The tax collector says they aren't changing anything on the tax records until they receive a letter from a judge.

Will my neighbor win?

A: There is no way to tell whether you or your neighbor would win this case.

The issue of vacated rights-of-way, streets and alleys can be rather complicated. In some cases, roads, streets, alleys and other types of rights-of-way were created from private land and in others they were created from public land.

If you live in a modern subdivision, that subdivision may have been owned by a company or individual that developed the property, built the roads and other public improvements and put up the homes for sale. If you live in an older town, the roads, streets and alleys have been public for decades, if not centuries.

Most states have statutes on their books that would regulate how local municipalities vacate streets, rights-of-way and roads. Those statues generally specify the process through which this happens..

When a local municipality vacates a street, road or right of way, they are basically saying that they have decided not to use that street and transfer ownership of that street from the public (the government) to private ownership.

In some cases, owners that are adjacent to the vacated piece of land would share equally in that land. In other cases, only one of the adjacent owners might be entitled to the vacated land. You may fall into this second example. If the developer of the subdivision owned all the land and used some of that land to create a right of way that was vacated by your city, your land may have an inherent right to the vacated land over your neighbor.

The most common types of land vacated are alleys. Towns or cities frequently decide they no longer have any use for the alleys and convey the land back to the adjacent owners. Another type of vacated rights-of-way are access roads used by municipalities that are no longer used once newer roads with better access are built.

The only way you can find out whether you can prevail in this case is to consult with an attorney who has experience in municipal law or has extensive knowledge of how municipalities must accept the dedication of rights-of-way and the mechanism to vacate rights-of-way.

Depending on the statutes and the history of legal cases in your state relating to vacating rights-of-way, you may find that the answer you seek may be readily available to a practitioner in that area of law. Make sure you come into the meeting with a copy of the subdivision plat for your neighborhood and other documentation regarding the course of action your local municipality took when they vacated the land and deeded it to you.

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