Easement through my property

[climb.on]

I'm looking for suggestions to future proof a driveway easement, we are granting, as much as reasonably possible. I've heard several nightmare easement stories that could have been easily avoided with some early insight and agreement upfront. We are selling some of our land and will allow for an easement along the property line. I have a list of things that I want included and will l let our attorney write them in legal terms. The buyer will be paying to install a 1/4 mile road in the easement, which is currently wooded. The first 1/8" mile of that road will be used by use a little but not much. My specific concerns are:

• What road base specs to require (this will be a gravel road).
• How to ensure future shared road maintenance.
• Thinking about limiting vehicle size (thus potential road damage) by requiring permission if large trucks need to come through, like dump trucks etc

Other things I should be including/requiring?

 

[tarmy]

You need to get the attorney to write up a maintenance agreement and some type of construction license (revokable) for the construction terms and conditions…and acceptance of the work conditions of approval. The easement docs would reference those other documents as necessary. Normally, in my experience, the easement will have certain items and conditions and not the agreement nor license(s).

 

[larry_g]

Understanding Easements, Rights of Way and Their Affects on Property Value

Property value can be highly dependent on the rights and building abilities that come along with it, such as easements and rights of way.

www.jimersonfirm.com

You might want to understand the difference between an easement and a right-of-way. A cousin had a right of way or something through his property. Once a year he would have to close it off to prevent it from becoming permanent. So there are a variety of legal things that allow what you want to happen, some more restrictive and/or permanent than others.

lg
no neat sig line

 

[rayra]

Explore options for restricting time or type of use. Consider curbing, boulders, fencing or something to keep passing-thru traffic solely on the road and not tearing up the rest of your adjacent property. Give an inch and they'll take a mile.

 

[nadogail]

This is something you will want to do "On the number and by the numbers" Real Estate laws vary by jurisdiction, any specifications should be checked by a trusted competent Engineer. Bad or erroneous paperwork can make any deal a disaster, don't cheap out; pay for good advice and use it. See rayra's post

 

[brownbagg]

just build it to county specification

 

[Firebrick43]

I'm looking for suggestions to future proof a driveway easement, we are granting, as much as reasonably possible. I've heard several nightmare easement stories that could have been easily avoided with some early insight and agreement upfront. We are selling some of our land and will allow for an easement along the property line. I have a list of things that I want included and will l let our attorney write them in legal terms. The buyer will be paying to install a 1/4 mile road in the easement, which is currently wooded. The first 1/8" mile of that road will be used by use a little but not much. My specific concerns are:

• What road base specs to require (this will be a gravel road).
• How to ensure future shared road maintenance.
• Thinking about limiting vehicle size (thus potential road damage) by requiring permission if large trucks need to come through, like dump trucks etc

Other things I should be including/requiring?

"the first 1/*" mile of that road will be used by use a little but not much" I assume the second us should be "by us". What for? Access to your property, ie you share the driveway? Or just to maintain your property? If the latter, they should cover all the cost. If the former, they should cover everything after your drive turns off the main drive and split 50/50 the shared part. If you want to ensure a proper base, put specs like 4 inches of #2 stone and 4 inches of 73's on top of that with top soil removed.

 

[Mikeske]

I also consider fencing and gate with lock to the section which will be your use only. I have a easement on the both the north side and the south side of my property to get to homes behind my property. The original easement as written had a added sentence for the south side easement on the north side easement papers which became an issue. There was property to the south of mine that had only access via the easement but the bank would not finance having a new home built there until there was a properly written easement for the south side easement. So the folks building the new home at there dime paid to have the easement rewritten with a maintenance agreement.

The issues came up immediately when the wife of the owner of the first home on the south side objected to changes of the existing easement as she thought it was what is known in this state as a exclusive easement. It was not Exclusive but non-exclusive and I told her as much. It also had a liability release to protect me from being sued if someone was hurt using the easement. I asked her if she wanted to find a new way into her property as if the agreement was not signed I rip out the driveway that they had already there. Her husband being a nice guy signed the easement agreement with the maintenance and liability release agreement already in it. The 2nd owners also signed the agreement. Fast track today and both properties have been sold to different owners and I made clear that if they have issues please contact me first such as repairs needed and if they need something concerning the easement. The new owners to both south side properties are fine and never present problems with the easement.

 

[SALIV8]

Dont think I would do this myself.

 

[pbon]

Specify the maximum width of the road so it cannot be widened (I need to bring a modular home through on 2 oversized loads so we must widen the road) and specify the maximum use (I am turning my house into 4 apartments). Easements are a common source of litigation.

 

[Adaylate]

Make sure it is for a single residence and non-commercial.

 

[James-W]

I am totally confused. Where does this road go? I know you said you were selling some property and you were allowing a road to put in, presumably so the buyer can access the property. But several questions come to mind. Is this road going to lead to a house? Is it just hunting property that will be used only during hunting season? It would be helpful for us to know just what the road is going to be used for and how often will it be used. You are from Minnesota so you get snow every year. Will the buyer of the property be using the road in the Winter months, and if so, I assume the road will need to be plowed in order to allow access to the property. Lots of questions here, any chance you can let us know the answers to these questions?

 

[rancherbill]

I'm looking for suggestions to future proof a driveway easement, we are granting, as much as reasonably possible.

I have an image of you selling off the back of your property and having this road go through the middle. this has hillbilly written all over it as I understand it.

Here this would not be permitted. Here every property must have a legal access not going over somebody else's property.

You should consider making 3 titles and turning the road over the the local government.

 

[climb.on]

I am totally confused. Where does this road go? I know you said you were selling some property and you were allowing a road to put in, presumably so the buyer can access the property. But several questions come to mind. Is this road going to lead to a house? Is it just hunting property that will be used only during hunting season? It would be helpful for us to know just what the road is going to be used for and how often will it be used. You are from Minnesota so you get snow every year. Will the buyer of the property be using the road in the Winter months, and if so, I assume the road will need to be plowed in order to allow access to the property. Lots of questions here, any chance you can let us know the answers to these questions?

The road will pass over our property the back property I am selling. No house, but one could be added in the future. The easement will be attached to the deed (forget the term) and will have basically unlimited year round personal use. Or at least that is my intent.

 

[climb.on]

I have an image of you selling off the back of your property and having this road go through the middle. this has hillbilly written all over it as I understand it.

Here this would not be permitted. Here every property must have a legal access not going over somebody else's property.

You should consider making 3 titles and turning the road over the the local government.

You are exactly right. It is allowed, when it's attached to the deed. Happens all the time here.

 

[mikedodge]

Let a lawyer deal with it.
The one thing that could get messy is the shared use bit. You want them to maintain it and restrict certain use but they could claim any damage was by you. Then again the risk is more theirs to begin with buying land locked property.

 

[PugetDude]

These situations rarely end well.

 

[mcbane]

“ this has hillbilly written all over it as I understand it…..

..You should consider making 3 titles and turning the road over the the local government.”

When the government owns the road, EVERYONE is allowed to use it, even thugs from a nearby city who wish to case your house. If it remains a private road, you can keep out that sort of problem with signs, a gate, or more hillbilly methods.

 

[jack stand]

Wouldn't it be much "cleaner", at least legally if you simply sold (included) the land that this driveway will be on?
It may mean that in the future there will be 2 parallel driveways that is kinda silly looking, but you never will worry about any future easement/use problems.
I know that it's generally not allowed by the local/state to create a new lot without legal frontage just for these reasons and it's a huge consideration for lenders as well.

 

[mwalsh9152]

Dont think I would do this myself.

Pretty sure I would laugh hysterically before they even were able to finish asking.

 

[LOW1]

Consider whether or not you want to limit what and who can use the easement. For example do you want to let your neighbor create a new 20 lot residential subdivision and have the easement serve all 20 lots? Or do you want your neighbor to start a business and have all his customers use the easement?

 

[HoosierMark]

Nobody mentioned taxes. If you own it and they have an easement, you are paying taxes on it. I would consider selling them the land and taking an easement for me to use it. Then they can pay the taxes. But some good advice here, easements are just partnerships. Some can be great, some can be problematic.

 

[climb.on]

Let a lawyer deal with it.
The one thing that could get messy is the shared use bit. You want them to maintain it and restrict certain use but they could claim any damage was by you. Then again the risk is more theirs to begin with buying land locked property.

We are going to let the lawyer deal with it, but I need to direct the lawyer as to what we want. You are spot on with the rest. It's the imperfect part that I will do my best to defining a good quality road specs up front and limiting heavy equipment. It's not going to be perfect.

When the government owns the road, EVERYONE is allowed to use it, even thugs from a nearby city who wish to case your house. If it remains a private road, you can keep out that sort of problem with signs, a gate, or more hillbilly methods.

Turning it over to the government to own and maintain isn't an option.

Pretty sure I would laugh hysterically before they even were able to finish asking.

Finish asking what?

 

[climb.on]

Consider whether or not you want to limit what and who can use the easement. For example do you want to let your neighbor create a new 20 lot residential subdivision and have the easement serve all 20 lots? Or do you want your neighbor to start a business and have all his customers use the easement?

Oh yes, this is definitely on my radar in and it's a huge one. A buddy of mine is dealing with this exact issue on an easement through his property right now. The person using my buddy's easement broke up their property up and sold 4 lake lots. One day dump trucks rolled down his road, a grader dropped his blade and widened the road and construction started on a lake cabin. Now the cabin construction has been ceased for over a year and everyone is lawyered up. Quite a mess. This easement we are providing will specifically state it will extend to one deed only. That deed holder can not extend easement use to other adjacent property owners. Great idea on limiting commercial use....someone above mentioned it as well.

 

[driftpin]

I suggest consulting a civil engineer who can give you a typical roadway cross-section for the roadway of the easement. I suspect there may need to be a soil test involved to determine the nature of base improvements necessary for the maximum load being placed upon the means of egress to the parcel. Then something to the effect that "maintenance and repairs to maintain the easement roadway at this series of specifications shall be paid-for equally by the signatory parties or their subsequent owners of record of this real property (insert legal descriptions here). An annual inspection by a qualified person competent to determine the condition of the roadway shall be performed each April 30. Deficiencies noted shall be contracted for necessary repairs to be completed as soon as possible to compliance with original stipulated specifications, and payment for same according to this agreement."

I am not an attorney, but it may be worthwhile to form some sort of corporation or other liability-limiting partnership to protect you from a calamitous occurrence.

Florida statutes and ordinances governing parcels require means of access, and prohibit 'land-locked' parcels with no access. I suspect your jurisdiction has similar regulations.

A restrictive covenant could be written into the sales agreement about current and future use, which in any case would already be covered by local zoning regulations.

 

[CoogarXR]

I don't know how your property is, topography-wise, but don't forget to consider runoff and flooding potential. When you mow down a bunch of trees and pave a road (I don't recall if you said it will be paved or not), you may have some rainwater runoff to be concerned with. You may want to add some drainage verbiage in the contract.

 

[rayra]

The road will pass over our property the back property I am selling. No house, but one could be added in the future. The easement will be attached to the deed (forget the term) and will have basically unlimited year round personal use. Or at least that is my intent.

And in the future, you could have a single-wide back there and youts tearing up and down the easement road all day on their ATVs with dust clouds drifting over your house.

If you are not wed to the property, I'd suggest finding a new place that better suits you, instead of subdividing your lot and opening Pandora's Box.

 

[rancherbill]

You are exactly right. It is allowed, when it's attached to the deed. Happens all the time here.

Hahahaha, and then in the next breath you're getting a lawyer and getting legal advice on GJ because you have heard of lots of these deals going south.

You don't realize how idiotic it sounds that you are selling a lot, but want to control the size and seasonal timing of trucks for the new owner to his lot. Are you going to put a scale and 24 hour monitoring?

I've done 3 multi lot subdivisions and been on the county development appeal board. All I learned was that you do it right the first time and it's done right. Your plan is a lawyer make work project for now and for the future to infinity. Everybody writes "perfect" easements and then the fights start.

 

[James-W]

The more I think about your situation, the more I am convinced that you should keep the land and forget about any easement for a road. I have the feeling that at some point in the future you will regret ever having sold the land and the road easement will turn into a nightmare beyond belief. Obviously, it is your land and you can do as you feel best, but you asked for opinions and I just gave you mine.

 

[John in OH]

Definitely have your attorney write the specifics, but an attorney is not an engineer and may not be the best one to define the technical details. Perhaps you can discuss the question with the county engineer's office to get more specifics related to ROWs and easements and what your local building requirements may expect.

 

[mrpizza]

My last house used an easement to get to the property. The guy who owned the land (bought after I did actually) was a huge jerk and always picked fights with everyone who drove through there. He actually had my drive and then across his front yard was the road for the dude who lived on the other property so two easements.

He was always yelling at UPS to slow down and harassing visitors. He wanted all the easements to go away and threatened legal action always. I would try and ignore him. Instead, we sold our house and have never been happier. My only easement now is the powerlines way across the creek at the property line.


Do NOT sell your back property and do an easement.

 

[mikedodge]

For all the reasons noted i wouldn't want to do it. If I had to I'd almost rather keep the back lot along with ownership of the driveway and adequate room around it and sell the rest.

 

[Mikeske]

I am going to go into the full story of my property. I bought the property in 1998 and it was already a short platted with 4 lots on this 20.36 acre original lot, The lot I bought was across the front of the other three lots and had easements on the south side for two homes of 20 feet and the north side was 30 feet feet 10 foot for the power easement and then 20 feet for the another 2 homes,I knew this going in as the title company and prior owner informed me of this.. I have a additional 30 foot easement running north to south across the front of my lot that is for a private road. So after all the total easements I am probably around a 4.8 acre lot from the original 5.09 acre.

Do I care about the easements well to be honest all the lots have liability releases on them so they are what they are. I do help to maintain the north and south easements and the road easement is maintain by community association for the road only with annual dues. I do not try to cause waves and that is because I want to be a good neighbor and respected by all the neighbors. Are there issues with the easements oh yes but they can always be worked out with being a adult and not a ***** and without lawyering up and having more issues. I know as the road associations easement on my property is for the 30 feet but at the south end of the property the road curves and is 44 feet into my property as it leaves my property. It has been that way since before I bought the property and I have mentioned this to the association meetings but the cost to modify the road association easement is well into the 5 figure amounts. As far as I am concern I am not going to bother with it as long as I am respected then no problem.

 

[rockinacummins]

Another vote for NOT inviting this type of headache into your life. It’s a lose-lose situation. Eventually they will sell the property and the new owners won’t be easy to deal with. Or you’ll want to sell your property and the potential buyers will be turned off by the easement and not knowing what the people that use it are like.

If it were me and I was dead-set on selling the back portion of my property, I would fence off a strip along the property line and sell that along with the lot. That way it’s their problem as far as maintenance and upkeep. And there’s no question about where they can drive.

As I understand it (at least in my state) you can file restrictions with the deed when you sell the property. This can (theoretically) limit what the people can and can’t do on THEIR PROPERTY. It smells kind of fishy to me, and I would bet a good lawyer could poke all kinds of holes in it if you weren’t careful. For me, I’d never buy property with a restriction that my neighbor controlled. Kinda negates the point of owning your property.

 

[Innovate1]

These arrangements can be huge headaches and money pits if things go south. I was on the other end of one of these. Had some property with an easement across a property with an existing house. Old easement with a gravel road to the existing house and no existing road in the easement to the back property. We came to an agreement on the easement and put in a gravel road with base. A couple years later the relationship went south for some reason and they decided we were the enemy. Claimed there was erosion along the road and demanded we pay for filling in the drainage swale along the road. There road was along the bottom of hill and sloped slightly to the back property where we put a culvert and it all worked fine. We refused to pay for fill and told them they weren't allowed to fill. They did it anyway. Ended up in a court battle where they claimed they "never got" the title page with the easement listed even though we were able to track it down. Lied repeatedly in depositions. Called the cops on us. Threatened to kill me. Claimed the husband had alzheimers. Did everything possible to drag things out for several years. Only winners were the lawyers. Tried to sell the property as it seemed they had a personal issue with us. They knocked down the signs. We eventually were able to sell and the new owners seem to get along with the old couple that gave us so much trouble. Glad we are rid of it. Wonder if they will get in a feud at some point but it's no longer my worry. Wife suggested we sell some of our existing property which would have needed an easement to our house - I quickly vetoed that idea.

 

[climb.on]

I really appreciate everyone's suggestions and concerns. To clarify for those who have concerns about the easement....this is not at my residence. It's a couple hundred acres of hunting land with no residences or cabins (at least not currently). Of course, that doesn't eliminate the possibility of potential issues, but it's not the same as selling a 1/2 acre lot behind my house. The easement is right on the property line and a fair distance from where our hunting camp is.

 

[rancherbill]

....this is not at my residence. ... but it's not the same as selling a 1/2 acre lot behind my house.

I respectfully say BS. You are worried about the weight of trucks and the season and you are writing conditions right from the start.

Read Inovate1's post just above yours and problem and costs that just keep on coming and coming.

You were looking for suggestions to future proof a driveway.

I get that if you do it right it probably will trigger fees, assessments, development requirements, infrastructure costs and assessment. HERE that all adds up to about $100,000 per lot.

If you are going to do this I'd create a 20 YEAR Land LEASE and sell it to them. There are places around here on leases from 20 to 99 years. They are responsible for water sewage, road etc. You have your money and they get the land.

 

[walta]

I have to ask why are you inviting this headache into your life?

Do you really need this money that bad?

I am sure you like the person you are selling to but it is only a matter of time before they resell it. When stuff starts disappearing from your camp it is one more suspect. Really there is nothing they could do that would spoil you hunt? Seems to me if they built houses you would have to be somewhat concerned.

I say if you sell the land sell them the what would be the easement and be done with it.

Just because you see this as hunting land today does not mean you always will think that is its best use and the next owners will have different ideas.

Walta

 

[climb.on]

Thanks all. I have the information I need.

 

[PugetDude]

Best way to ruin a good hunting spot is to sell a small piece of it. You essentially lose control over all of it forever; subsequent owners may happen share your interests (in which case you just invited unlimited competition for your finite resources-everyone who hunts there knows how to get there, has a general idea of how to BS their way through any confrontations, and will tell everyone they know ) or they may not ( in which case you just invited the potential for unlimited future aggravation, activism, locked gates, unfriendly development, etc..)

Think carefully and look beyond the short-term financial benefit. Do you really want the new owners & their brothers, cousins, uncles, friends, neighbors, clients, etc in your midst every hunting season? Cherish what you have, don't sabotage it.

I ended up selling a prime piece of hunting property in Wyoming when the neighbors started subdividing- we suddenly had atv tracks in the fields, cut fences, open gates, poaching, camping, metal detecting, picnicking, prospecting, and dumping. Word got out that we were out of state owners and the locals decided it was open season to use our place for whatever they wanted since the odds of getting caught were pretty slim.