Easement - Reason not to purchase?

21 Replies

Hi BP Family -

A property I'm interested in purchasing as a short term rental has an unsolved easement on it due to the neighbor having built their driveway 2 feet over their property line - into the one I'm considering.

Would this be a reason not to purchase? Any major red flags to close on a property with this easement unsolved?

Huge thanks for any POVs.

I'm not a lawyer, but this has been my observation.  

It would only be a problem if you care about the encroachment and would want the neighbor to move their driveway.

In many states, if there is a boundary that has been observed by neighbors, it becomes the de facto property line, so even if you wanted to sue for that 2 feet, you might not get it.  If you don't care about the 2 feet, then it's no big deal.

How long has the driveway been over 2 feet on the property? If it has been more than 10 years it would be easement by prescription. Which means that it has been there for more then 10 years and no one ever cared that it was there. This making it a legal easement. If it is less than 10 years you might have recourse with the neighboring lot. Always check with a real estate attorney when you have this kinds of questions. I know of one of my investors friends that had an air conditioner 2" over the property line and the people who bought the vacant lot next to him caused him so much trouble over the 2" easement he ended up selling the property. 

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@Greg Scott @Zachary Fix appreciate the quick notes.

Can't say I really care about the 2 feet over the property line. While I may use this a few weekends a year with my family, the intention for purchase is to be a short term rental - where the 2 feet is irrelevant when it comes to finding tenants and for my tenants' experience on the property.

Thanks!

Regardless of time elapsed, the driveway may or may not be an easement issue depending on many factors. Suggest consulting with an attorney if you decide to pursue this property. Would the 2' impact your ability to redevelop the property in the future? Would it make the lot "non-conforming"? 

Hi there, I am a real estate attorney who does a lot of easement work. First, real estate laws are specific to states, so to answer a question like this you always have to explain in which state your property is located. In general, it's a good idea to solve encroachment and easement problems as soon as affordably possible. This is because another person who is difficult could buy the nextdoor property and make your life miserable, as someone here eluded to.

There are many ways to solve this problem: You could ask the neighbor to remove the part of the drivewy on your property. You could sell that property under the driveway to the neighbor and do a lot-line adjustment (this involves hiring a surveyor and probably an attorney). You could write and record an easement giving the neighbor official control and responsibility for the maintenance of that driveway. Generally, that neighbor would pay for the easement since they are taking control of your property, even though you still have to pay property tax for it. They may say that they already have an easement because it has been there for many years. This is where you'll need to look at (or have a lawyer explain) the laws in your state to determine if this is true.

Overall, it's not a difficult problem at the moment. Somewhere down the road it could end up costing tens of thousands of dollars to remedy. So the best things to do is to try to use it as a bargaining point to get a lower price for the property now. Then, when you spend the money, you wont feel jipped.

@Jordan Mandel always consider your exit strategy. If the STR is in a majority owner occupied SFH neighborhood and you think you'll likely be selling to a residential homeowner when the time comes, this is something to consider.

Also, there could be liabilities-what if something happens to a neighbors guest on that 2 feet of driveway that are your property?

I’m not saying don’t do it-I have a triplex that is over an easement-its been so long (1896 construction date) that the title company gave me insurance title insurance with a rider specifically related to the easement.

Like other posters have said, make sure you understand all consequences, and make the decision with all of the information.

Good luck!

This is not an unsolved easement, it’s an encroachment. If you take title without forcing the seller to fix the issue before settlement, you then own the issue.

Although you don’t care about this, a future purchaser may. So to protect the strip of land for future buyers at a minimum notice should be given to the neighbor that makes the current use permissive (in order to end any possession that could be considered open and hostile).

Assuming you've received a survey that shows the driveway encroaching on the property you're buying and you have confirmed the neighbor did not receive and record a specific easement for the encroachment and the contract for your purchase of the property does not provide you're buying subject to the encroachment, I'd probably ask the seller how (s)he intends on resolving the problem.

Originally posted by @Zachary Fix:

How long has the driveway been over 2 feet on the property? If it has been more than 10 years it would be easement by prescription. Which means that it has been there for more then 10 years and no one ever cared that it was there. This making it a legal easement. If it is less than 10 years you might have recourse with the neighboring lot. Always check with a real estate attorney when you have this kinds of questions. I know of one of my investors friends that had an air conditioner 2" over the property line and the people who bought the vacant lot next to him caused him so much trouble over the 2" easement he ended up selling the property.

Keep in mind these laws vary drastically from jurisdiction to Jurisdiction..  I had a case in Oregon for example I bought 3 houses on 3 parcels they had crossed a railroad easement that in turn got bought by the state for a linear park ..  so now state owned.. these homes were built in the 40s and these three homes used this same driveway for all that time open and notorious etc.

Well I bought it and got title insurance of course.. well when I got to sell one of properties buyer used another title company and it showed that we were actually land locked.. So my title insurance had to defend my title ..  and get me a right of way or pay us off.. Problem was I already demo'd the houses .. and my title insurance if they chose to pay me would be less than what i had in it..

So title insurance doing what they do they look for the cheapest route to solve the problem.. So they hired a very good law firm to go at it with not only the state but we needed a neighbors portion as well.. the neighbor of course lawyers up.. It turns out in Oregon there is no prescriptive rights to cross state lands.. the state said pound sand.. Well we then went the semi political route talking to our reps .. And with their help the lawyers help and 3 plus years of wrangling with the state we got a LICENSE to cross the state lands that was written in concert with our title company underwriters so they would insure access to future buyers..  I suspect the title company spent at least 50k on legal it cost me a ton of time.. And they had to pay the neighbor about 20k for what amounted to about 50 sq ft.. plus pave her driveway for the first 75 feet off the public right of way..  ( which i paid for. )

Start to finish i bought it 7 years ago and closed on it to the new developer who is going to build 3 million dollar plus specs on . Closed Oct 29th or so of this year.  had no income because of spent 100k demoing the house's before we realized we were landlocked..

2 feet on a driveway myself I am with others if it does not affect the property and you dont mind it.. so be it.. if it bugs you move on.

Originally posted by @Jenifer Levini:

Hi there, I am a real estate attorney who does a lot of easement work. First, real estate laws are specific to states, so to answer a question like this you always have to explain in which state your property is located. In general, it's a good idea to solve encroachment and easement problems as soon as affordably possible. This is because another person who is difficult could buy the nextdoor property and make your life miserable, as someone here eluded to.

There are many ways to solve this problem: You could ask the neighbor to remove the part of the drivewy on your property. You could sell that property under the driveway to the neighbor and do a lot-line adjustment (this involves hiring a surveyor and probably an attorney). You could write and record an easement giving the neighbor official control and responsibility for the maintenance of that driveway. Generally, that neighbor would pay for the easement since they are taking control of your property, even though you still have to pay property tax for it. They may say that they already have an easement because it has been there for many years. This is where you'll need to look at (or have a lawyer explain) the laws in your state to determine if this is true.

Overall, it's not a difficult problem at the moment. Somewhere down the road it could end up costing tens of thousands of dollars to remedy. So the best things to do is to try to use it as a bargaining point to get a lower price for the property now. Then, when you spend the money, you wont feel jipped.

it is a wives tail that you cant be landlocked  I know in CA. you can..  I was trying to buy this absolutly stunning 120 acre parcels just north of Calistoga .  this was a few years back .. but as I remember it you can have a landlocked parcel if you land lock yourself.. IE you own the property between you and the right of way then deed off and dont retain an easement and then sell it off and no longer have common ownership.. I had it researched I really wanted that parcel.. its only value at that point was to any neighboring land owner who already had access..  I wonder how they handle all those antiquated subdivisions out by loch lomand lake there is SC county.. My dad worked for George Triphon who bought all those lots up in the 50s and 60s popped dirt roads in and then sold the lots off.. there were many of these old subdivison around CA as you know.. 

Originally posted by @Jay Hinrichs:
Originally posted by @Zachary Fix:

How long has the driveway been over 2 feet on the property? If it has been more than 10 years it would be easement by prescription. Which means that it has been there for more then 10 years and no one ever cared that it was there. This making it a legal easement. If it is less than 10 years you might have recourse with the neighboring lot. Always check with a real estate attorney when you have this kinds of questions. I know of one of my investors friends that had an air conditioner 2" over the property line and the people who bought the vacant lot next to him caused him so much trouble over the 2" easement he ended up selling the property.

Keep in mind these laws vary drastically from jurisdiction to Jurisdiction..  I had a case in Oregon for example I bought 3 houses on 3 parcels they had crossed a railroad easement that in turn got bought by the state for a linear park ..  so now state owned.. these homes were built in the 40s and these three homes used this same driveway for all that time open and notorious etc.

Well I bought it and got title insurance of course.. well when I got to sell one of properties buyer used another title company and it showed that we were actually land locked.. So my title insurance had to defend my title ..  and get me a right of way or pay us off.. Problem was I already demo'd the houses .. and my title insurance if they chose to pay me would be less than what i had in it..

So title insurance doing what they do they look for the cheapest route to solve the problem.. So they hired a very good law firm to go at it with not only the state but we needed a neighbors portion as well.. the neighbor of course lawyers up.. It turns out in Oregon there is no prescriptive rights to cross state lands.. the state said pound sand.. Well we then went the semi political route talking to our reps .. And with their help the lawyers help and 3 plus years of wrangling with the state we got a LICENSE to cross the state lands that was written in concert with our title company underwriters so they would insure access to future buyers..  I suspect the title company spent at least 50k on legal it cost me a ton of time.. And they had to pay the neighbor about 20k for what amounted to about 50 sq ft.. plus pave her driveway for the first 75 feet off the public right of way..  ( which i paid for. )

Start to finish i bought it 7 years ago and closed on it to the new developer who is going to build 3 million dollar plus specs on . Closed Oct 29th or so of this year.  had no income because of spent 100k demoing the house's before we realized we were landlocked..

2 feet on a driveway myself I am with others if it does not affect the property and you dont mind it.. so be it.. if it bugs you move on.

 I had a similar claim in Florida, though the outcome was different. Florida has a statute known as the Marketable Record title Act (MARTA) which at the time exempted sovereign lands which are lands owned by the State because of their nature (think submerged land) not because they are simply owned by the State. Since the State purchased the ROW from a RR, a court found the State-owned land was subject to MARTA and therefore the insured's title was good. Of course, it took a while to get the decision during which the insured's title was clouded.  The law was later changed to include all State-owned land.

Originally posted by @Peter Walther:
Originally posted by @Jay Hinrichs:
Originally posted by @Zachary Fix:

How long has the driveway been over 2 feet on the property? If it has been more than 10 years it would be easement by prescription. Which means that it has been there for more then 10 years and no one ever cared that it was there. This making it a legal easement. If it is less than 10 years you might have recourse with the neighboring lot. Always check with a real estate attorney when you have this kinds of questions. I know of one of my investors friends that had an air conditioner 2" over the property line and the people who bought the vacant lot next to him caused him so much trouble over the 2" easement he ended up selling the property.

Keep in mind these laws vary drastically from jurisdiction to Jurisdiction..  I had a case in Oregon for example I bought 3 houses on 3 parcels they had crossed a railroad easement that in turn got bought by the state for a linear park ..  so now state owned.. these homes were built in the 40s and these three homes used this same driveway for all that time open and notorious etc.

Well I bought it and got title insurance of course.. well when I got to sell one of properties buyer used another title company and it showed that we were actually land locked.. So my title insurance had to defend my title ..  and get me a right of way or pay us off.. Problem was I already demo'd the houses .. and my title insurance if they chose to pay me would be less than what i had in it..

So title insurance doing what they do they look for the cheapest route to solve the problem.. So they hired a very good law firm to go at it with not only the state but we needed a neighbors portion as well.. the neighbor of course lawyers up.. It turns out in Oregon there is no prescriptive rights to cross state lands.. the state said pound sand.. Well we then went the semi political route talking to our reps .. And with their help the lawyers help and 3 plus years of wrangling with the state we got a LICENSE to cross the state lands that was written in concert with our title company underwriters so they would insure access to future buyers..  I suspect the title company spent at least 50k on legal it cost me a ton of time.. And they had to pay the neighbor about 20k for what amounted to about 50 sq ft.. plus pave her driveway for the first 75 feet off the public right of way..  ( which i paid for. )

Start to finish i bought it 7 years ago and closed on it to the new developer who is going to build 3 million dollar plus specs on . Closed Oct 29th or so of this year.  had no income because of spent 100k demoing the house's before we realized we were landlocked..

2 feet on a driveway myself I am with others if it does not affect the property and you dont mind it.. so be it.. if it bugs you move on.

 I had a similar claim in Florida, though the outcome was different. Florida has a statute known as the Marketable Record title Act (MARTA) which at the time exempted sovereign lands which are lands owned by the State because of their nature (think submerged land) not because they are simply owned by the State. Since the State purchased the ROW from a RR, a court found the State-owned land was subject to MARTA and therefore the insured's title was good. Of course, it took a while to get the decision during which the insured's title was clouded.  The law was later changed to include all State-owned land.

In the northwest there are old logging railroad easements all over the place no tracks just the left over easements that are not always apparent on physical inspection.  So CA OR WA ID MT have made it a point to buy these and then turn them into linar parks its really pretty cool. long long bike and hiking trails and of course in our area were topography is a thing.. these old railroad easements are aligned to run with the topo of the land so they meander and wind there way through the mountains creeks river beds valleys etc etc. 

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@Tom Gimer in Texas if the easement is continuous and uninterrupted for at least ten years it can a prescriptive easement. The only limitations would be certain limitations and stipulations as to when the prescriptive period begins. For example, the period will not run if the owner of the servient estate is suffering under a legal disability such as infancy or insanity or is the ward of an estate when the adverse use begins. The period will run once the disability is removed. An intervening disability occurring after the period has started will not suspend (or toll) the running of the prescriptive period.

I am not a lawyer and every states laws are different. It is always best to check with a local  real estate attorney for easement issues. 



I was selling a building and when the buyer did a survey, it revealed that the neighbors property was overhanging mine by 1.5 feet. The buyers bank refused to close the deal without resolution. That meant either an easement or removing the structure. The neighbor was a grumpy old guy. He argued with me for 15 minutes saying that his building was there for 75 years and nobody had an issue with it. I explained over and over that I just wanted him to sign a piece of paper granting him legal rights for his building to be on my property. Over the course of a week he kept refusing to sign the document. I was giving him free rights to my land, so it made no sense. Finally, I had my attorney draft a demand letter asking him to remove the structure or we would remove it. He called his attorney who told him to sign the easement ASAP.

The person who is encroaching on your property is the one with something to lose here. I would get something in writing to document conditions of use. That could be an easement. You could also sell them the land or even have them lease it. If you don't need that land for anything, there is very little for you to lose here. 

Do you have any idea how old the driveway is? If it is newer, there may be county permit records. 

Originally posted by @Jordan Mandel:

Thanks @Joe Splitrock! 

I don't have use for that particular part of the property and it feels like the risk would be in this being a concern for the lender, title company, insurance company...or a future buyer.

Right?

Just ask the seller to get a signed easement before closing. That is exactly what happened to me as I explained. The seller just tells the neighbor sign this paperwork or remove your driveway from my property. It should be easy to resolve for the seller or even you.

Get a legal consultation (and pay for it) from a lawyer who practices this type of law in the jurisdiction where the property is located. Everything else is just speculation.

As mentioned before, statues and caselaw varies DRAMATICALLY between states.

If it matters to you, you don't necessarily need to sue to get them to remove 2 feet of drive.  Maybe just a formal easement agreement that acknowledges the encroachment, grants an express easement, and that when the drive is replaced, the easement terminates and they will keep the next drive entirely on their land.

But like I said, check with a local lawyer.

Originally posted by @Zachary Fix:

@Tom Gimer in Texas if the easement is continuous and uninterrupted for at least ten years it can a prescriptive easement. The only limitations would be certain limitations and stipulations as to when the prescriptive period begins. For example, the period will not run if the owner of the servient estate is suffering under a legal disability such as infancy or insanity or is the ward of an estate when the adverse use begins. The period will run once the disability is removed. An intervening disability occurring after the period has started will not suspend (or toll) the running of the prescriptive period.

I am not a lawyer and every states laws are different. It is always best to check with a local  real estate attorney for easement issues. 

 

OP, definitely talk to a lawyer about this issue if you want to pursue it further. Unless things have changed recently, this advice is generally not accurate in Texas. Easements in TX are complex and case law has evolved over time. I'm also not an attorney either but deal with easement issues fairly routinely.