# Easement, access question.



## bucko12pt (Dec 9, 2004)

WoW. said:


> Title insurance is great but, the seller provides the owners policy and the buyer only pays for a mortgage policy if there is a mortgage. Unless there is clear easement with no hiccups, the title company will NOT issue a policy. They need proof that there will be no issues.


I have a parcel without an easement and a policy from the title company, issued when I bought the property, that shows the lack of easement as an exception. It is at the end of a dead end road and since I purchased the property the County Road Commission has extended the road end, so I now have legal access. I haven't bothered to update the title insurance and see no reason to at this point.

I'm no expert, but In my case they issued a policy without an easement, they simply showed the missing easement as an exception. Doesn't make sense they wouldn't issue a policy if there was no easement.


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## Lund Explorer (Jan 23, 2011)

I'm probably way out in left field on this, but why doesn't the OP just go to the seller and offer to purchase the portion of land where the easement exists.

Doesn't that give the OP piece of mind that the issue is gone forever? Imagine how much easier it would be to sell that property in the future.


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## ESOX (Nov 20, 2000)

Research "adverse possession".


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## WoW. (Aug 11, 2011)

bucko12pt said:


> I have a parcel without an easement and a policy from the title company, issued when I bought the property, that shows the lack of easement as an exception. It is at the end of a dead end road and since I purchased the property the County Road Commission has extended the road end, so I now have legal access. I haven't bothered to update the title insurance and see no reason to at this point.
> 
> I'm no expert, but In my case they issued a policy without an easement, they simply showed the missing easement as an exception. Doesn't make sense they wouldn't issue a policy if there was no easement.


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## WoW. (Aug 11, 2011)

They wrote the policy but with the exception....well.....you didn't much for your money now did you?


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## Jbra (Nov 18, 2010)

From what I’ve found, adverse possession is much more difficult to win in a court of law. You should be looking into prescriptive easement and tacking. My attorney informed me a prescriptive easement takes 15 years in Michigan to take effect and can transfer ownership, called “tacking” to extend the time line. With a prescriptive easement you have to take your neighbor to court to become legal. If I were you I’d go to the owners and grease the palm, so to speak. My land/Home has the same issue with my driveway crossing the neighbors land and has been this way since the 1800’s. Im not concerned about losing access because I feel I would win a battle. Im slowly trying to get a legal easement in place so I don’t have to upset my neighbors.


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## bucko12pt (Dec 9, 2004)

WoW. said:


> They wrote the policy but with the exception....well.....you didn't much for your money now did you?


I didn't pay for it and I got all the other assurances on the property the title insurance provides, such as other easements, taxes are paid and up to date, or any other exceptions, so yeah, I got my money's worth.


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## deernutz (Jan 18, 2009)

I feel like you should contact the seller of the property. Doesn’t seem like much skin off their nose to grant an easement to a property they are already selling and a buyer probably wouldn’t be scared off by an easement through a small portion of the property


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## Benzie Rover (Mar 17, 2008)

Jbra said:


> From what I’ve found, adverse possession is much more difficult to win in a court of law. You should be looking into prescriptive easement and tacking. My attorney informed me a prescriptive easement takes 15 years in Michigan to take effect and can transfer ownership, called “tacking” to extend the time line. With a prescriptive easement you have to take your neighbor to court to become legal. If I were you I’d go to the owners and grease the palm, so to speak. My land/Home has the same issue with my driveway crossing the neighbors land and has been this way since the 1800’s. Im not concerned about losing access because I feel I would win a battle. Im slowly trying to get a legal easement in place so I don’t have to upset my neighbors.


Yep, this. Adverse possession would be nearly impossible to prove here since it was clearly known to everybody that you were using this route since it's infront of the house along the main road. Most judges would say that such clearly knowledge would constitute a verbal license for use, which prevents the adverse claim. Adverse possession hinges on the act being conducted for over 14 years with no knowledge or consent by the owner, which seems odd, but that's how they enforce. If you ask permission and are given it, then you have a verbal license that can be revoked. Crossing a property corner along the road infront of both houses would be very hard to prove that nobody was aware, plus (and most importantly IMO), pursuing an adverse possession claim is seriously uncool. You're basically stealing from another property owner. 

Prescriptive easements are the way to go. If there are none on record (run title back to US Patent and have it reviewed by a good searcher or real estate attorney), chances are the court will be able to assign one based on the past Parent parcel. If the parcel is itself a Parent parcel (meaning it goes back to Patent and has not be split up), and still does not have access, then, you could actually have a true landlocked parcel. It is very rare, but it certainly can and does happen. 

For your situation, I'd check out Schedule B of your title policy to see if they excepted the access. They will issue a title policy for dang near anything, but their except pretty much anything meaningful from their coverage. Title policies are a joke, typically. It takes a serious error by the abstractor to create an actual claim. I would also consider have that access language in your deed clarified. Get a survey of the lot and then describe the access route and record it as an Affidavit. 

fish on


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## Mud Hen (Dec 13, 2011)

That document that you shared lists and easement recorded in Jackson County. You should be able to get a copy of that easement from the court house, by providing the information that is listed there. That likely is what you are looking for. Good luck.


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## FREEPOP (Apr 11, 2002)

bucko12pt said:


> That should have been brought up in your title insurance when you bought the property if there was an issue. I'd go back and look at those documents.
> 
> Even if you didn't have a deeded access, the owner would have a hard time blocking you off if it's been used as an access to your home for that length of time. We went thru this same thing recently at our camp. New owner tried to block an access to our property that had been the access point since 1927. We had an attorney send him a letter and he relented.


Just because it's been used for years means virtually nothing. If there's not a deeded easement, it could be a problem.
Lots of factors can come into play with this.
I paid a lawyer a good amount to get schooled on this.


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## FREEPOP (Apr 11, 2002)

UPHuntr said:


> The way it was explained to us when we bought our property that had a easement on it for the property behind us is the easement is up to the new owner at the time the property is sold. So for example there was an old easement across our property for years. When we purchased the property that easement was null and void and we got to decide weather we wanted to grant easement or not. We chose not to because a full county road was put in to the property that needed the easement. But, it was that simple when we purchased there was a letter sent to the other property owner that the easement was not being granted by the new owners and that they would have to find new access to their property. Like I said it was no big deal for us because the other property now had a regular road leading to it, but my point is that easements can be denied. In the U.P. the federal forest service blocks easement roads to private land and it is up to the land owner to find new access. Just was about to happen to a friend of ours in the U.P. and he ended up involving state senators and congressmen to make sure he continues to have access to his 40 acres.
> When it comes to easements my advice is run away, but good luck I hope it works out.


There are easements that can be owner to owner or "run with the land" which are permanent.


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## FREEPOP (Apr 11, 2002)

Benzie Rover said:


> Yep, this. Adverse possession would be nearly impossible to prove here since it was clearly known to everybody that you were using this route since it's infront of the house along the main road. Most judges would say that such clearly knowledge would constitute a verbal license for use, which prevents the adverse claim. Adverse possession hinges on the act being conducted for over 14 years with no knowledge or consent by the owner, which seems odd, but that's how they enforce. If you ask permission and are given it, then you have a verbal license that can be revoked. Crossing a property corner along the road infront of both houses would be very hard to prove that nobody was aware, plus (and most importantly IMO), pursuing an adverse possession claim is seriously uncool. You're basically stealing from another property owner.
> 
> Prescriptive easements are the way to go. If there are none on record (run title back to US Patent and have it reviewed by a good searcher or real estate attorney), chances are the court will be able to assign one based on the past Parent parcel. If the parcel is itself a Parent parcel (meaning it goes back to Patent and has not be split up), and still does not have access, then, you could actually have a true landlocked parcel. It is very rare, but it certainly can and does happen.
> 
> ...


Lots of gambling with the courts and potentially some serious amounts of money. That's okay if it isn't coming out of your pocket.


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## bucko12pt (Dec 9, 2004)

FREEPOP said:


> Just because it's been used for years means virtually nothing. If there's not a deeded easement, it could be a problem.
> Lots of factors can come into play with this.
> I paid a lawyer a good amount to get schooled on this.


Sorry, you paid for a lousy lawyer.


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## FREEPOP (Apr 11, 2002)

bucko12pt said:


> Sorry, you paid for a lousy lawyer.


You may believe that but it is just because you don't know the laws.
If it were to go to a court battle you could very well lose your easement and a good chunk of $$.
IMO, consider yourself very lucky that the landowner didn't have the time and/or money to fight it.


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## FREEPOP (Apr 11, 2002)

onenationhere said:


> View attachment 292580
> We bought a cottage in 2012, it is on a private road. Our driveway crosses over a small distance through a neighbors property and has so since it was built in 1940.
> I remember asking the realtor back in 2012 if there were any restrictions or limitations associated with how the drive is, she said no.
> Also, all of the paperwork I have doesn't mention the drive crossing the neighbors property.
> ...


No amount of time that the easement has been used can guarantee that you have legal access. There is a possibility that you can gain an easement from prior use but it may cost big money and there will be no guarantee that you'll win.
There is a potential for this to cause problems with future neighbors and also if/when you try and sell the property.

1. find out if there is a deeded easement recorded.
2. if not contact the owner / realtor and ask about getting one (you may have to throw some money at them to motivate them)
3. if you are able to obtain an easement this way get it recorded, deeded and make sure it runs with the land (stays, even after selling)
4. hire a lawyer and see what your options are if the above don't work (a lawyer can also provide those services).

Best of luck


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## hawgeye (Mar 3, 2011)

When I bought my house they told me I had a out lot that was my Lake Huron access. They said I wouldn't have any issues and didn't need it in writing. I turned down the house unless I had it in writing. I'm glad I did because a new neighbor tried to shut down my out lot. Always get it in writing.

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## bucko12pt (Dec 9, 2004)

FREEPOP said:


> You may believe that but it is just because you don't know the laws.
> If it were to go to a court battle you could very well lose your easement and a good chunk of $$.
> IMO, consider yourself very lucky that the landowner didn't have the time and/or money to fight it.


Maybe, but I've been in the same situation twice and have been successful both times, sorry you weren't.


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## onenationhere (Dec 18, 2008)

Have things squared away with the title company. The driveway crossing over my neighbors property is on file as an easement right of way.
Thanks all for the advice.

Chris Nation


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## FREEPOP (Apr 11, 2002)

Good to hear!


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