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  1. #1
    jimmymarcia is offline Junior Member
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    Driveway Easment

    What is the name of your state? WI

    We are to close on a house in a few weeks. Our purchase agreement states that the seller will present us with a driveway easement - the road which they access the house to is owned by their neighbors. We just found out that they don't actually have a formally written easement. They have been using the driveway through an oral agreement between them and the owners of the driveway.

    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. The sellers title company have drafted an easment, but the neighbors will not sign it. They say they don't have a problem with us using the driveway, they just don't want to sign an easment. As far as we know, there has never been a prescriptive easement in place. This house is 36 years old and has always been accessed using this driveway - but now the owners of the driveway don't want to sign a paper stating that we have the right to access our house.

    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?
  2. #2
    BradleyS is offline Member
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    [url]http://www.lectlaw.com/files/lat06.htm[/url]

    EASEMENTS BY NECESSITY

    Even if it isn't written down, a legal easement usually exists if it's
    absolutely necessary to cross someone's land for a legitimate purpose.

    The law grants people a right of access to their homes, for example. So
    if the only access to a piece of land is by crossing through a
    neighbor's property, the law recognizes an easement allowing access over
    the neighbor's land. This is called an "easement by necessity." When
    land is subject to such an easement, the landowner may not interfere
    with the neighbor's legal right.


    Copyright not found......from the website of From the 'Lectric Law Library's stacks Trespass, Adverse Possession & Easements

    If you need to get to the "garage" by using the neighbor's driveway, and you don't have a driveway or other access**************.then "necessity" might be better than "prescription".
  3. #3
    jimmymarcia is offline Junior Member
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    Thank you for prompt reply. Here's another problem though - our bank funding the loan needs a copy of the easement of the shared driveway on file before they will give us the loan. We are worried we will not get our house because of this condition.
  4. #4
    BradleyS is offline Member
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    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.
    Who may I ask is requiring this document that will hold up or may cancel your contract?

    YOU? SELLER? TITLE CO.? LENDER?

    If you like the house.....amend the contract to delete the easement document requirement and close on your house. Then you can work on the easement issue.
  5. #5
    jimmymarcia is offline Junior Member
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    The lender is requiring this document.
  6. #6
    BradleyS is offline Member
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    The lender could require this for a couple of reasons that I can think of::

    1. Could eventually lower value depending how the appraiser may of appraised the property.
    2. Listed on Contract, needs to be completed before closing.

    Ask the lender if you and the Seller agreed to remove the easement document (by an amendment) that was supposed to be provided, and now cannot be produced, if this could satisfy their stipulation.

    Does the driveway lead to your parking area, garage, or carport?

    Has the title/escrow company thoroughly researched the easements?

    Did you get the easements in writing.....or did you get a "easements on FILM #27934"???

    Does anyone, including your neighbor have any survey documentation???
  7. #7
    jimmymarcia is offline Junior Member
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    We do have the survey documentation and the appraisal has been done and is satisfactory. We wouldn't have any problems ammending the contract to get rid of this contingency, but the lender says this documentation is a requirement for the loan.

    The shared driveway leads to our garage. We would not have access to the main road unless we cut down our woods and built a new driveway. I am sure legally we have every right to use the driveway (easement by necessity)- but how do we convince the bank of this. The title company has recently drafted an easement, we have a copy of this, but it is unsigned and the neighbors refuse to sign it.

    I may sound paranoid, but could the seller be trying to back out of the contract by not presenting this easement to us? There is less than 2 weeks til closing and the sellers don't seem too concerned about the neighbors refusal to sign this. Could this be a loophole for them to get out of the contract?
    Last edited by jimmymarcia; 06-25-2005 at 04:05 PM.
  8. #8
    BradleyS is offline Member
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    Did the Seller and Seller's Agent offer this document in the Purchase Contract?

    How in the WORLD would a lender have any clue about any written easement by prescription documentation???

    Additionally, I believe the Seller can revoke the permission as long as it is writing**************..So how could this be a valuable stipulation????

    If you have an ability to access the garage within your property and be permitted an approach from the City/County, you may not have a "neccessity" easement.

    If the city would not permit you to have an approach.....then by all means it is "neccessity."
  9. #9
    jimmymarcia is offline Junior Member
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    "Did the Seller and Seller's Agent offer this document in the Purchase Contract?" -the seller disclosed the easement and the sellers agent offered this document in the Purchase Agreement.


    "How in the WORLD would a lender have any clue about any written easement by prescription documentation???"--they wouldn't, that is why we are required to provide this information to them. We are trying to figure out how to satisfy the "easement" condition of our loan when the seller's neighbor won't sign the easement.
  10. #10
    BradleyS is offline Member
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    Wait.....researching WI law on prescriptive easements....

    Found this:

    (1) Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by s. 893.29, may commence an action to establish prescriptive rights under ch. 843.

    AND.....

    AWESOME APPELLATE CASE**************

    [url]http://www.courts.state.wi.us/ca/opinions/02/pdf/02-1674.pdf[/url]

    ¶19 As commonly used, a prescriptive easement does not denote
    ownership
    . See, e.g., Shearer v. Congdon, 25 Wis. 2d 663, 670, 131 N.W.2d 377
    (1964) (“Respondents neither claim ownership of the road nor that appellants
    trespassed, but merely seek a prescriptive easement.”); see also Urban v. Grasser,
    No. 02-1674
    10
    2001 WI 63, ¶18, 243 Wis. 2d 673, 627 N.W.2d 511 (an easement interest in
    property is “only a right to use the land not inconsistent with the general property of the servient owner”); Shellow v. Hagen, 9 Wis. 2d 506,
    511-12, 101 N.W.2d 694 (1960) (though “[t]he method by which a prescriptive easement is acquired is analogous to the method by which title is obtained by adverse possession,” the analogy must nonetheless “tak[e] into account the difference in the physical nature of the acts of possession and use”). ¶20 Thus, the Schauers are not owners of the property subject to the
    prescriptive easement under any common definition of “owner” that we have
    uncovered. Still, the Schauers argue they were owners-in-possession because they exercised “dominion” over the access road. They rely on that part of the definition of “owner” in the 1942 Wisconsin Law Review article stating “‘owner’… means simply the person who … has … dominion over the property.” See O’Neill, 259 Wis. 2d 544, ¶28 (quoting Roy G. Tulane and Ralph E. Axley, Title to Real Property—Thirty Year Limitation Statute, 1942 WIS.

    ---------------

    Explain to the lender, and show them this statute**************..no ownership.....just a right to use**************...and should not be a requirement to obtain a mortgage, especially after you and seller agree to amend the contract to omit.

    The lender need to worry about RESPA and REGULATION Z**************and stay out of easements......
  11. #11
    BradleyS is offline Member
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    Just got off the phone with a First Horizon Lender**************..never heard of a prescriptive easement stipulation to secure loan**************.said your lender or the underwriter is on "crack".
  12. #12
    jimmymarcia is offline Junior Member
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    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?
  13. #13
    HomeGuru is offline Senior Member
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    Quote Originally Posted by BradleyS
    Just got off the phone with a First Horizon Lender**************..never heard of a prescriptive easement stipulation to secure loan**************.said your lender or the underwriter is on "crack".
    **A: please get your facts straight with respect to the writer's salient issues.
  14. #14
    Daniel M. is offline Member
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    Quote Originally Posted by jimmymarcia
    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?
    Looks like you have an easement (implied) but the lender wants an express easement that is in writing and of record.
    The contract is probably voidable by you. What would you sue for and whom would you want to sue (Seller, Neighbor)?

    [url]http://www.co.ozaukee.wi.us/wrpla/IntroductionEasements.htm[/url]
  15. #15
    jimmymarcia is offline Junior Member
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    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?

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