Anybody here have any experience with these?

Long story short, I know a guy looking to buy a place. The particular plot in question is part of a larger original plot of land that was kinda odd shaped. When the current owner had it surveyed and subdivided it left a sizable chunk of ground to one side of the plot with the house with no year round access point. The only viable year-round access is the driveway that would go right past the house, and down the length of the plot that might be bought.The seller wants to put an easement to guarantee access to the cut off chunk. The prospective buyer is understanding the issue and suggested a "regular" easement on the back of the plot with the house (to which there is a road, but it's not passable in a bad winter or a very wet spring) and an Easement in Gross for the seller who would then have access themselves to the cut off plot utilizing the driveway, but no one else.

The prospective buyer has been told not to trust an Easement in Gross because it could be modified via a lawsuit if the parties had a falling out. The cut off plot in question is going to be leased by the prospective buyer, so it would (should) really be a non-issue. But in the event the relationship twixt the sell and buyer deteriorates down the road, and/or the land gets sold or inherited and the lease is not renewed, that easement going past the house becomes a very big deal.

Make sense?

Consult an attorney. Don't trust future relationships or generations.

YMMV

Yeah, and the laws on such can vary quite a lot from state to state.

So, the current owner is going to retain title to the landlocked portion, but is going to lease it to the buyer of the homeplace tract.

Yeah, this will be great the first time a pissing match arises.

The owner of the landlocked part will nearly have carte blanche in court to devise an access route to his parcel. He will cite ease of construction, all weather access, etc, and any improvements the homeplace owner has made will be junior in nature to the access and subject to demolition, with or without compensation. (suck factor 9)

A route needs to be determined in advance, and the easement documents drawn up ahead of time.

Period.

Well, good luck to your friend. My personal inclination is to not get involved with anything that exposes my property to the free use of a man I don't like, respect or trust.

That's all the advice you need, right there....

When it comes to real estate, I wouldn't make any agreement that wasn't permanently attached to the land, regardless of who owns which parcel. Otherwise it could come back to bite someone years down the road. Do it right now and avoid the problems later.

Yep.

I'd tell my friend to find another place.




Dave

I would skip the hassle and uncertainty and look elsewhere. I have a friend whose family owns acreage and a house in the mountains. A neighbor just bought a 150 acre adjoining property for dirt cheap due to poor access. Now he wants an easement straight through their land so he can live there year round. I told them to figure out the increase in value to his property with the new access, and charge him at least the difference.

In most states now, it's illegal to sell lank locked parcels.

For the existing parcels that are landlocked, most states also have a legal remedy consisting of the most reasonable route to access the property being assigned as a permanent ingress/egress easement, and the owners of the surrounding property the easement crosses have no recourse but to allow the access.

Sounds like around here. But, the landlocked person has to sue for it and pay for it.

Skip alla that bullshitt and just get a regular easement or find a different place to buy.

If someone isn't willing to give a normal access easement, there's a reason and it's usually fishy.

The Montana Supreme Court recently had a discussion about easements in gross. Case is from 2015 and is called Bos Terra v. Beers. It is out of Hobson area and deals with a ditch but from memory it gave a bunch of discussion on the issue. Might be educational on the issue. It came up when I googled for it. Also the Supreme Court website will have it.

Nothing has been signed yet, trying to get it all hashed out before any ink touches paper. Other aspect to the land in question, it is grazing only. No structures, well, nada. And, there is no water on it, and no rights attached to it either. So it would have very little value except to the person that owns the plot with the house.

What I'm wondering mainly is if there is an easement already in place, and then an easement in gross as well for the seller (who will remain a neighbor) for the drive past the house if the easement in gross can be converted to a regular easement. I can absolutely see if there were no other easement or access to the parcel, that the owner would be wielding a big stick as far as getting access. I just figured if you can show this is already a guaranteed access via the easement at the back of the property then that would diminish their standing.

Thanks, I hadn't seen that. That decision looks to me like it favors the party wanting to restrict the easement.

That kind of gets into the area of having an "Historical Easement"...

If a property is accessed by a route, whether in writing as an easement or not, and in some cases with permission or not, the person doing that access to their property has grounds to file for permanent easement based on historical usage of that particular route.

Yeah, there's that too.

Forgot to mention, in the terms of the lease, would be right of first refusal to buy should the owner decide to sell. Ultimately, the goal is to own the plot with the house, and the parcel in question in re the easement access. Then it all becomes moot. But for now, that parcel is not for sale, just lease.

Unless this is some kind of hot property at an awesome price, I would consider going into a chill mode and hope to be able to get it all in one shot. Your friend could also consider offering to buy it all and leasing the back parcel to the seller if the seller has some short term need for it.

Seller has no need for it, it had been leased to the prior occupant who was renting the house for sale.

Not a great deal money-wise, but a very hard to get piece of property here locally. If passed on, will likely sell to someone else. My friend doesn't have the cheese to buy it all at one shot right now, even if the second parcel was on the block. So a long term lease, with rights to buy down the road is best that can be done.

I agree, in reading my description is sounds like a GD nightmare waiting to happen.

Well, I understand it because it is hard to find totally perfect real estate situations in rural areas of this state.

Exactly. We're talking a 10 acre parcel with the house, and almost 90 acres on the second piece 1.5 miles from town. Almost impossible to find in this area.

Dupe. The Fire is running quirky.

Then I would negotiate for the best type of contractual easement under Montana law. If your friend needs to give a mortgage on the place, sometimes the bank or title company will be an ally by requiring the best type of easement as a condition to the loan. The type of easement may impact LTV ratio, and there also may be loan underwriting criteria that impact the type of easement that can be placed on the house parcel.

Can you insure against access disputes later?

When I was remortgaging my property a couple of years back, the mortgage company balked because stricktly speaking, there was no legal right of access over the last 150 yards of lane leading to the properties.

Nobody knows who owns this section of the lane and its not public road..

I had two options, either enter into a expensive and lengthy legal action or simply pay $100 for an insurance policy should the right of access ever be challenged..That policy stays with the house should it be sold..

This, and preferably one with actual real estate experience.

Most title policies will list all easements, or lack thereof in the Schedule B part of the title commitment.

Then in the exceptions, they pick and choose what they insure, and what they don't. Usually all conflicts, or areas of no access, as well as encroachments, excroachments and like items are excluded from the policy coverage.

This is the exact reason when doing a subdivision we require all platted lots to have right of way adjacent to the lot to provide legal and physical access. I hate seeing landlocked parcels because they are always a headache.

Most, if not all states require ironclad access now.

It's not landlocked, it just does not have the access the new owner wants, and it wasn't subdivided off of my friend's property, so if it were landlocked, that would be an issue for the original parcel to resolved. Otherwise unscrupolous owners get better access by subdividing landlocked parcels....to be resolved by third party properties.