Without 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.

No easement, no driveway, no access

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.

Do you have an easement?

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.

Easements should be in writing and recorded

Best case scenario: You want an easement to be in writing. Then, you’d want that easement to be recorded in the office that is responsible for accepting real estate documents for recording. But 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 the property, gave you legal rights that may rise to being considered a permanent easement.

By asking, you may have acknowledged there is no easement

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. Worse, you may have acknowledged that you don’t have an easement. This will, of course, depend on case law in your state.

You used the land for the road for almost thirty years. That alone may give you the 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. Actually, you should have done that right after the neighbor agreed to the easement.

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. They may have advised you not to approach the neighbor once the land transferred title but to continue to use the road as you had for almost thirty years.

Protect your easement: Talk to a real estate attorney

Now, consult with a knowledgeable real estate attorney in your area who understands the law of easements. You need to:

  1. Find out if an easement was created at the time you purchased the lots and built the road
  2. Understand what to do to protect your rights to the access and continued use of the road
  3. Find out if you need a written agreement. If the easement was created a long time ago, you may not need a written agreement

Easements vs. temporary licenses

You might be in trouble if an easement wasn’t created when you purchased the lots. Did you receive a temporary license from the prior owner to use the road?

  • Licenses are generally personal in nature.
  • They don’t have the same permanent status as easements
  • Many license agreements can be terminated at the will of the party that granted the license

You need to figure out how easements and licenses are handled in your state. An attorney can help you evaluate your options at that point.

This story was updated October 30, 2022