Right of way

[DLemi]

What is the name of your state? Maine
Last year I purchased a 100x100' waterfront lot on a peninsule with deeded ROW (on my deed but not hers). But it is unclear "Specifically" where the access point is. The neighbor granting the ROW owns land on 2 sides of me. one side is covered with trees and is impassable and the other is her driveway and a newly grassed area with new shrubs on our property line (otherwise cleared for passage). DEP will not allow her to clear any more trees on her property. So my question is this... can I take my 4 wheel drive vehicle and drive over the only cleared area to gain access to my land?(Right over her new grass and new shrubs) and if so what r the ramifications if i do I hate to be this way but she is refusing me access to my deeded property and have owned it for over a year... I AM FED UP

 

[jimmler]

A boundary survey might help

If you did not have a boundary survey performed when you bought the property, you may want to have one done now by a registered surveyor in your state. Inform the surveyor you are also interested in having the limits of the right of way marked at the same time. Your surveyor might ask you to have a title search performed to research the land and easement, then they can mark it in the field.

Then you will know exactly where you are allowed to drive in order to access your property.

I might add that it is a really good idea to have any property you are buying surveyed prior to closing, for your own protection.

 

[DLemi]

I Did have a title search done.. It states " Also Granting a right of way over other lands of said grantor" that is all

 

[nextwife]

AS you do have legal (albeit poorly drafted) access via the neighbor's land, I'd suggest you go and ask them to designate what portion of their land THEY prefer you bring your vehicle across. But talk to an attorney first. This access isn't even clear as to whether this is foot traffic to bring a canoe or kayak to the water, or vehicle traffic. And heaven forbid you ever need heavy construction equipment back there!

Frankly, the time to clarify this stuff is PRIOR to purchase. At that point, you could have asked to previous owner to go back to their neighbor and work out further language that specifies your rights. And any cost of obtaining this would have then been their responsibility.

 

[HomeGuru]

I Did have a title search done.. It states " Also Granting a right of way over other lands of said grantor" that is all

**A: a title search is not a boundary survey. Read the post by jimmler again.

 

[nextwife]

AS I understand it, what is at question is what portion of the neighbor's property they may pass over to access their property. The land in question is their neighbor's, not theirs. AS there is no other access, other than over the neighbor's land, the boundary survey will not answer his access point question. A boundary survey will only show where the legal description of his land sits in relation to the other properties. With a general easement, such as this, there is no place to locate it on a survey.

Now, IF there is a road or driveway that potentially abuts his land, the boundary survey might help. But if he is fully landlocked, he needs to define what portion of the neighbor's property his access is through. I fail to see how surveying his own land will resolve this for a land locked parcel (granted it has shoreline) with a generalized easment.

So the ONLY ROW verbage is " Also Granting a right of way over other lands of said grantor"? If so, a surveyor will not be able to identify said easement on a survey. WE see many old utility easements like this from the electric utility around here. When they pop up, the utilitie's legal departments end up redrafting specific easments and abandoning the previous generalized one.

 

[HomeGuru]

AS I understand it, what is at question is what portion of the neighbor's property they may pass over to access their property. The land in question is their neighbor's, not theirs. AS there is no other access, other than over the neighbor's land, the boundary survey will not answer his access point question. A boundary survey will only show where the legal description of his land sits in relation to the other properties. With a general easement, such as this, there is no place to locate it on a survey.

Now, IF there is a road or driveway that potentially abuts his land, the boundary survey might help. But if he is fully landlocked, he needs to define what portion of the neighbor's property his access is through. I fail to see how surveying his own land will resolve this for a land locked parcel (granted it has shoreline) with a general easment.

**A: I'll let jimmler respond since I'm off to the 19th hole.

 

[DLemi]

exactly... the only Logical and existing access point to my property is through their driveway and to an existing cleared opening further down our property line... and since the Department of Environmental Management will not allow them to remove any more trees on their land, how can I force my Right of way? can I just take it and let them do the legal work?? they r being very unreasonable and told me outright that they dont want another neighbor.... period

thats probably y i got the land so cheep LOL

 

[jimmler]

nextwife

AS I understand it, what is at question is what portion of the neighbor's property they may pass over to access their property. The land in question is their neighbor's, not theirs. AS there is no other access, other than over the neighbor's land, the boundary survey will not answer his access point question. A boundary survey will only show where the legal description of his land sits in relation to the other properties. With a general easement, such as this, there is no place to locate it on a survey.

Now, IF there is a road or driveway that potentially abuts his land, the boundary survey might help. But if he is fully landlocked, he needs to define what portion of the neighbor's property his access is through. I fail to see how surveying his own land will resolve this for a land locked parcel (granted it has shoreline) with a generalized easment.

So the ONLY ROW verbage is " Also Granting a right of way over other lands of said grantor"? If so, a surveyor will not be able to identify said easement on a survey. WE see many old utility easements like this from the electric utility around here. When they pop up, the utilitie's legal departments end up redrafting specific easments and abandoning the previous generalized one.

I have to agree with you on this one. With a right of way description that ambiguous, a surveyor would have nothing to start with to be able to place it on the ground. Usually we have a little more to go on.

They need to talk to a local attorney versed in real estate law in order to try and clear this up (get an easement with a clear description recorded). It would still be a good idea to get a boundary survey done, then have the surveyor write the description of the easement based on what your attorney can get the neighbor to agree to (hopefully without going to court). If you contact a local land surveyor, they should be able to give you some names of real estate attorneys that have dealt with this type of situation before.

Yikes, what a mess.
Good luck.

 

[nextwife]

Talk to your attorney. Maybe have your attorney write them a letter documenting the ROW and requesting that they identify the access point through their property they prefer you use (that is not barracaded by trees). And mark it with stones, tree trunks, or bright spray paint. Then the burden is on them. They are required by the ROW granted to provide ACCESS across their land per your title report. (DO provide a copy to them of the document establishing this right, even if it is a few words on a vesting deed). Odd are these were all one parcel at one time. The piece you now own was conveyed WITH a right of access. If there are trees blocking one point, they must provide access over another. A helicopter should not be necessary!

They have no choice about having neighbors or not. They had the same right to buy this piece as you did. If they didn't want neighbors they should have bought it themslves.

 

[DLemi]

yes at one time they were owned by the same person

so since I have a ROW I can just take it?? especially due to the fact that they cant cut any more trees down?? and let THEM fight me?? THe ROW is on MY Deed but not theirs.... Of course i would provide them with a copy of My deed but with their attitude towards me i still think they r gonna fight me.... so my thinking is that if i Force My legal ROW over the only access point on the property then what r their options legally towards me?? can they only get me for the damage i do to their lawn and new shrub?? If so then its a no brainer what to do next LOL

 

[HomeGuru]

yes at one time they were owned by the same person

so since I have a ROW I can just take it?? especially due to the fact that they cant cut any more trees down?? and let THEM fight me?? THe ROW is on MY Deed but not theirs.... Of course i would provide them with a copy of My deed but with their attitude towards me i still think they r gonna fight me.... so my thinking is that if i Force My legal ROW over the only access point on the property then what r their options legally towards me?? can they only get me for the damage i do to their lawn and new shrub?? If so then its a no brainer what to do next LOL

**A: next, see a real estate attorney.

 

[nextwife]

Before you do anything, be sure to have a RE attorney review the abstract/title policy to be certain that the ROW stated on your deed was reserved for you at some point in restrictions/deeds to adjacent owner. A RE attorney can determine when and what document establishes the ROW. A deed from previous owner to you, alone, is not good ebough. When was previous owner granted that ROW? A RE Attorney can sort through, back to the land split and figure it out.

 

[HomeGuru]

Before you do anything, be sure to have a RE attorney review the abstract/title policy to be certain that the ROW stated on your deed was reserved for you at some point in restrictions/deeds to adjacent owner. A RE attorney can determine when and what document establishes the ROW. A deed from previous owner to you, alone, is not good ebough. When was previous owner granted that ROW? A RE Attorney can sort through, back to the land split and figure it out. [/

**A: great idea, that attorney thing.

 

[DLemi]

My Lot and ROW was created in 1958 (from her previous owner) and her land sold in 1960 (Her previous owner also). though no verbage was ever put in her deed or in any of her surveys, but it is , vaguely, in Mine.

BTW Thank you all for your helpful insight....
I So want to dirve over her land and take my chances LOL