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Driveway Easment

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efflandt

Senior Member
I would be very cautious about an easement that is not recorded. If you are not truly landlocked (regardless of difficulty of access), you cannot force anyone to give you an easement. If you only have verbal permission to use the existing driveway, that could be revoked at any time.

I ran into that with property I owned in Wisconsin (Price County). We did not know that what was represented as the easement was only verbal permission (title insurance excluded any easement). The easement property changed hands. At first the new owners gave verbal permission, but refused to put anything in writing. Then they changed their minds and said they would lock the gate the following September.

Even the easement described on the title (which crossed a bog and creek) was not properly recorded on all properties involved. My buyers backed out, so I sold to an adjoining neighbor (not in easement dispute), who had previously made a lower offer.

BTW I hired a local attorney for the sale, which first brought the easement problem to light. But unfortunately I did not consult an attorney when buying the property 12 years earlier.

If your land extends to a public road where a driveway could possibly be built, how can the loan company "require" an easement? If the verbal easement was revoked, how much would it cost to build a driveway through the woods? That might give you a bargaining point to drop the sale price if the seller cannot provide a written recorded easement. Then let your loan company know that building your own driveway is an option if there is no easement.
--
Not a legal expert, just a victim of invalid WI easement
 


jimmymarcia

Junior Member
The property is located on a corner. The private driveway intersects with a public road. Our house is inset about an acre from this public road--the private driveway leads to our garage, but we could make our own driveway, if necessary, and if the city allows it. Our survey map does show an 8 foot strip of land between our property and the public road - it says this strip is dedicated for steet. Not sure if this 8 foot stip (basically the ditch) means we are landlocked. There are also utility easements beside our house, along the boundry of the public road.

I wish they would not have notified us about this issue on a weekend. I feel helpless because I can't reach our lender, realtor or lawyer. Thanks you so much for everyone's input. I can't seem to think about anything else -- your comments are really helping me deal with this mess.
 

Daniel M.

Member
jimmymarcia said:
Daniel M. - Thank you - finally someone who understands what I'm saying. There is an implied easement between the seller and their neighbor whom own the joint driveway. But our lender wants this implied easement documented and kept on file. Not to mention we would also like this documented, but if it means losing the house, WE would settle for an implied easement - but the lender won't.

We do not want to void the contract - we have every intention on closing. If we don't, were going to be homeless. We have already invested $2k in attempting to buy this house (inspections, appraisals, earnest money, and other fees). Our contract states, "A material failure to perform any obligation under this offer is a default which may subject the defaulting party to liability for damages or other legal remedies. If seller defaults, buyer may: 1) sue for specific performance; or 2) terminate the offer. Since the easement was not presented as stated in the contract, are the sellers in default? and can we sue for damages?
I am not an attorney but it would seem to me that if the seller does not provide the easement they promised you in writing by the closing day they will be in default.

Your damages would seem to be the unrefundable costs expended ie, appraisal, inspection etc.

As for specific performance (forcing them to sell you the property) you will probably keep running into the same situation. I wonder if you could find a lender who would not make an issue of it?

The only way I could see to force the neighbor to agree would be for the seller to bring the matter to a court which could take months and would seem to lessen the chance of a housewarming gift. I think the easement after 36 years is well established and could not be unilaterally revoked by the neighbor, but what do I know.

Maybe a little moolah for the neighbor? :)
 

BradleyS

Member
jimmymarcia said:
I never said the bank needed a prescriptive easement stipulation to secure the loan- I said the bank needs a copy of the recorded shared driveway agreement. We cannot get a copy of this because the neighbors will not sign the easement which the title company presented to them. As a result, we are checking on whether a prescriptive easement has
already been established. The title company is working on this, but not coming up with anything.

My initial question was whether the sellers are in breach of contract because they could not come up with this easement they agreed to in the purchase contract. Is the contract void or do we have grounds to sue?
I never said the bank needed a prescriptive easement stipulation to secure the loan- I said the bank needs a copy of the recorded shared driveway agreement.
Original Post:
In order for us to close on the property, we need to get a written easement signed by the seller and the neighbors who own the property[/B].......
Then what is this statement all about??????????

What can we do? Can we sue the sellers for breech of contract if they don't present us with the easement they said they had in the first place? Are the owners of the driveway legally obligated to sign the easement, since thier driveway has been the means of accessing the house for 36 years?
My initial question was whether the sellers are in breach of contract because they could not come up with this easement they agreed to in the purchase contract. Is the contract void or do we have grounds to sue?
Your initial question was, "What can we do?" I tried to provide alternatives to court action..........with information and questions that you may not thought of or have access........You don't want alternatives.........
 
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jimmymarcia

Junior Member
Just talked to the bank today - since the easement was disclosed in the offer to purchase (disclosed by the seller) we need that easement to get the funds for the loan.

They said another option is compensating the neighbors for the easement - which could be paid by either us or the sellers (or both).

Anyone know how much an easement should be bought out for? Sounds like a bribe to me - is this legal?
 

Daniel M.

Member
Just talked to the bank today - since the easement was disclosed in the offer to purchase (disclosed by the seller) we need that easement to get the funds for the loan.
They said another option is compensating the neighbors for the easement - which could be paid by either us or the sellers (or both).

Anyone know how much an easement should be bought out for? Sounds like a bribe to me - is this legal?
Sorry to hear you are still stuck on this.

I think how I would approach this is to have someone assemble evidence that after 36 years of use there is an easement present (probably under several theories) and that codifying it does not diminish the Neighbor's property and then present this to the Neighbor. In fact the agreement probably calls for joint maintenance of the road which the neighbor could not force at present so it could benefit them.

As for the cost of an easement, it could be any amount depending on what it is for and if one exists presently. In your case you already have an easement, no additional use by you or burden will accrue after having it put in writing. So it is really worth whatever the seller feels it is to sell the property.

With all this said - no written easement - no loan.
The seller promised the easement, they should be responsible for paying most or all the cost - $500, $1000, $1500, who knows? If the seller needs the written easement to sell they could pursue it in the court which would be a lot more trouble and cost for the neighbor which the seller could mention to the neighbor if they fail to agree to a reasonable figure.

Dan
___________________________________________________
The above is my opinion only, not legal advice.
 

jimmymarcia

Junior Member
Later this afternoon I talked to our lender again -- she is having an attorney contact these neighbors to discuss the easement. She suspects the title company did not present this document appropriately -- maybe the attorney can explain it to them more effectively, or change it to benefit them in some way, eg. sharing maintenance of the driveway.

The funny thing is, the last time we spoke to the sellers, they mentioned they were good friends with the neighbors. If they were such good friends, why would they be causing such grief with this easement? Especially when it may cost the sellers more money. I am beginning to suspect the neighbors "reluctance" is the seller's way to get out of the contract.
 

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