ROAD EASEMENTS AND MAINTENANCE AGREEMENTS
With the arrival of Summer and the drying out from all those rains, many people are looking at their land and how they – and others – are using the property. From the calls we’ve been receiving for Consults, it is clear that information on Road Easements and Maintenance Agreements are needed. That’s the subject of Today’s Article and several follow-ups to come.
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ROAD EASEMENTS AND MAINTENANCE AGREEMENTS by Keith Dunnagan
As the markets improve buying trends also change. We are beginning to see more and more people trading city life for rural life. But those trades come with issues that are generally unique to larger rural parcels. Where urban development is often in the form of small lot subdivisions, rural properties tend to be larger. They also tend to be less accessible and many rural lots lack urban services such as water delivery and sewer, which means well drilling and septic system. It also means access problems. This short series will look at the common issues of rural property, namely access easements, road maintenance agreements and well and irrigation easements.
In rural subdivisions it is common to see access easements attached to properties. That is some right granted to allow the owner of the benefited property to cross over the burdened property to reach the benefited property. Access is one of basic tenets of property ownership and it is such an important issue that the common law has long recognized the theory of “easement by necessity”. This means that if a property is land locked and one is not able to reach their property from a public road then the court has the ability to place an easement over an adjacent parcel to afford the owner access. The policy is that property is so unique and valuable that an owner should not be precluded from access by other properties.
We see these cases often. The theory of easement by necessity or easement by implication started from the basis that a property is truly landlocked and that there is no access to a public road because the property is surrounded on all sides by private property and therefore access is necessary to reach a public way. Those cases were easily decided as the maps and surveys clearly delineated no actual access. However, as time as progressed lack of direct access to a public way has now morphed into a theory that there is no reasonable access. That is, the property does border a public way but some sort of geography issue makes access difficult; ie., a stream (not impossible to cross but incredibly expensive to obtain the necessary permits to cross) or a steep hillside or grade that requires so much excavation work that it is impractical to access. This line of legal reasoning urging reasonable access may change the landscape on court directed easement affecting real property.
Additionally, the more prevalent argument in rural properties is easement by prescription. Such an easement is one that is created by use over time. The basics are that the owner claiming easement by prescription states that they or their predecessor in interest have been using the easement for more than five consecutive years (often times it is a much longer period of time), and that the use was open, notorious and hostile (without the permission of the owner or against the express directives of the owner). If all of the elements are met then the court creates a prescriptive easement. While prescription is a good way to get initial easement rights, the drawback to prescription is that the easement cannot be expanded. Prescriptive easements are limited to the use that created the easement and owners once being the victim of a prescriptive easement tend to be very diligent to insure that the use is not expanded.
If you or your client is considering purchasing any property, especially a rural property, access should be of significant importance to review. What is the right that is created in the owner that allows the owner to actually get to the property? It seems like a basic question, but one that is often forgotten or taken for granted because when living in the city most properties abut a city street.
In the next Article in this series, we will look at road maintenance agreements. That should exist in common access situations but often do not.
If you have any questions regarding easements, particularly access easements, please feel free to contact the attorneys are BPE Law Group and we would be happy to assist you with your real estate needs. BPE Law Attorneys are very experienced with real property issues including easements, land use agreements, and other necessary documents or court orders necessary to protect a property owner’s interest.
For over 20 years, the attorneys of BPE Law Group, P.C. have been assisting our clients with their real estate, business, and other legal needs. If you have questions concerning real estate, business, or any other legal matter, give us a call at (916) 966-2260 to schedule a Consultation with one of our experienced attorneys or email Keith at email@example.com.
This article is not intended to be legal advice, lending advice, or a specific recommendation of any particular lender or company, and should not be taken as such advice.