Need Advice: Bought a house with an unmarketable title

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Need Advice: Bought a house with an unmarketable title

Tricia Brock
Saratoga, NY · Member since 2017 · 8 posts · 0 votes

Hello All and thanks for stopping by to help.

I purchased a SFH in 2019 in Saratoga Springs, NY. I purchased a fee title insurance policy on the property. No issues arose regarding the title when we closed on the property. The house is the last house on a dead end street. The lot is basically a 1/2 acre square with the dead end of the road along the front edge of the property which is where the driveway comes off the road.

Fast forward to July 2021 when we listed the property for sale and got it under contract within 2-3 weeks. We were scheduled to close the first week of September 2021. We are now being told that the property has an unmarketable title as the property is an interior parcel with no public road access. Basically the tax maps show the roadway ending even with our property line despite the physical road extending another 50-70 feet. I have included a quick sketch to demonstrate what is reflected on the tax maps. The portion of the road in front of our house looks just like the rest of the road and the town plows/picks up leaves and is serviced by garbage pickup/ utility companies.

Apparently our title insurance policy is not applicable to this title issue as it contains the language "Premises under examination is an interior parcel and does not front or border on any street or road. There is no means by which access to and from said premises to the public highway can be obtained. No easement or right of way by prescription or necessity to and from said premises will be insured." We were not aware of this exception or its implications when we purchased the house.

The house was built in 1973 and sold multiple times since then. There is a agreement document between owners of the two properties in 1985 that states "That [prior owner of Neighbors property on my sketch] will deed to [prior owners of my property] a non exclusive right of way for ingress an egress to the [prior owners of my property]." At the end of the document it states "This agreement shall inure to the benefit of and shall be binding upon the parties hereto, their heirs, executors, personal representatives, administrators and assigns." Also my deed includes the phrase "Together with a right of way for ingress and egress as set forth in agreement in December 1985 and recorded..."


My current attorney, the buyers attorney and my attorney from when I bought the house are apparently all working on this behind the scenes to get it rectified, but I don't seem to hear much about what is happening and it is taking forever. My attorney seems to be fairly passive and letting the buyers attorney handle this as she personally knows the neighbors. At this point they are telling me that the only way to get this rectified and the sale to be approved is for me to pay the current land owners $12,500 (originally $10,000) to sign a right of way or easement agreement.

Looking for any advice on how to proceed from here. I do not understand how I was able to buy a house I can not sell. I feel like I should not be on the hook for all this headache and $12k. I am extra frustrated as this feels like a cash grab from these property owners who live in a 4,000 sq ft brick mansion and I am selling a small SFH to move to a 1br 1ba apartment.


Please any help is appreciated. Sorry for the amount of text and happy to answer any questions I left out. Thanks.


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Bruce WoodruffPro Member
Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
4y

I don't know if this will help but i hope it might. I bought a property out in the middle of nowhere that was land-locked like this (that's the legal term). Found out that Federal law has a clause that prohibits landlocking  property, i.e. every property owner must be guaranteed access to their property. Here is a link to some info:https://pocketsense.com/federa...

I bet one of our legal contributors have some input as well.....

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  • Bruce WoodruffPro Member
    Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
    4y

    I don't know if this will help but i hope it might. I bought a property out in the middle of nowhere that was land-locked like this (that's the legal term). Found out that Federal law has a clause that prohibits landlocking  property, i.e. every property owner must be guaranteed access to their property. Here is a link to some info:https://pocketsense.com/federa...

    I bet one of our legal contributors have some input as well.....

    3Reply
  • Tricia Brock
    OP
    Saratoga, NY · Member since 2017 · 8 posts · 0 votes
    4y

    Thanks Bruce. I will look into easement by necessity. If you went down this route with your property did you have to go to court to get the easement by necessity?

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  • Bruce WoodruffPro Member
    Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
    4y
    Originally posted by @Tricia Brock:

    Thanks Bruce. I will look into easement by necessity. If you went down this route with your property did you have to go to court to get the easement by necessity?

     No. Once the surrounding landowners were sent the notice the problem went away quickly. But they could have gone to court, I guess, they just didn't. 

    Wait and see what others say, but I think the old ruling of 'easement by necessity' is a valid one.

    Good luck!

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    You left out a very important part. Please complete the following clip from your fact scenario:

    "Together with a right of way for ingress and egress as set forth in agreement in December 1985 and recorded..."

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  • Tricia Brock
    OP
    Saratoga, NY · Member since 2017 · 8 posts · 0 votes
    4y

    Sorry I left out the identifying information as I really don't know if you are supposed to give that out. It reads "TOGETHER with a right of way for ingress and egress as set forth in an agreement dated 12/30/1985 and recorded in the Saratoga County Clerk's Office on..in book X on page YZ"

    The agreement referenced in book X on page YZ is the one I mentioned in 1985 that states "That [prior owner of Neighbors property on my sketch] will deed to [prior owners of my property] a non exclusive right of way for ingress an egress to the [prior owners of my property]." I

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  • Ken Naim
    Investor · Lake Worth, FL · Member since 2016 · 233 posts · 140 votes
    4y

    @Joe Archbold the easiest way is syndications as they do all the work for you and have knowledge and experience. Returns can be stronger than the stock market averages but everyone has a different definition of strong returns.

    All the methods you listed are hard until you get the knowledge and experience then they are easy. All require work and have different risks/benefits. Also the returns are generally proportional to the risks.

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Tricia Brock The 1985 agreement was recorded in the land records. Good. Although it may not expressly state that it "runs with the land" the inclusion of the following language you cited...

    "This agreement shall inure to the benefit of and shall be binding upon the parties hereto, their heirs, executors, personal representatives, administrators and assigns" ... means that it does run with the land and binds the future owners of each parcel. 

    You are an assign of the prior owner, who was an assign of the owner before him, etc. Same goes for the neighbor who now owns property subject to the right of way. The 1985 agreement therefore should inure to your benefit. Unless a survey shows that the recorded right of way does not actually give you access to the road from your driveway and then across the neighbor's subservient estate, you should not have to pay a dime for anything... you already have record access. 

    Of course there are exceptions to rules but so far you haven't mentioned anything that would have terminated the 1985 right of way.

    To me it sounds like the title company/attorney who handled the 2019 acquisition did not search back to 1985 to find the record access. However, it was staring them right in the face as part of the legal description in your deed.

    Good luck.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y

    My reading of the Agreement is that the prior parties had agreed to an easement not that it is an easement.  It appears the Easement was not recorded and the current owner of the property the easement is to run over wants $12k to sign one.  It also appears the title policy has an exception for the lack of access and therefore the problem is not covered.  If it were me and pull out a copy of the commitment and see if it had the same exception.  If it does your probably out of luck getting coverage under the policy and acknowledge you didn't do your due diligence by reading the commitment before closing.  If it doesn't, I'd contact the underwriter and demand an endorsement deleting the exception and coverage for the problem.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y

    Unfortunately, there are situations where property can be landlocked.  If there is no coverage under the title policy, you'll probably need to retain a good real estate attorney who has experience in bringing litigation establish access.  You might also look into the possibility of bringing an action against your seller though it may be difficult since the situation was disclosed to you in the commit, if in fact the exception was there.

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Peter Walther I just re-read the above and now I see the "will deed to" language. Oof. Yes, that certainly makes things more complicated than my answer above.

    But I would never pay for access that was previously agreed upon of record. Instead of paying the unreasonable neighbor, I would file a declaratory judgment action against that neighbor to have the right of way recorded as intended.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y
    Originally posted by @Tom Gimer:

    @Peter Walther I just re-read the above and now I see the "will deed to" language. Oof. Yes, that certainly makes things more complicated than my answer above.

    But I would never pay for access that was previously agreed upon of record. Instead of paying the unreasonable neighbor, I would file a declaratory judgment action against that neighbor to have the right of way recorded as intended.

    The OP can look into it, but I think there are probably at least wo problems with bringing a successful suit.  The first is standing since the OP was not a party to the original agreement, I suspect it will be difficult to show she stepped into the original agreement's beneficiary's shoes.  Second, it sounds like the consideration wasn't paid therefore the agreement's conditions weren't met.  There may be others, like it's time barred but I haven't read the agreement.

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Peter Walther The agreement to record a right of way was expressly binding on the original parties' assigns. All subsequent owners of each parcel would have had notice of the obligation.

    There has been no information provided about non-payment, or whether the original agreement even required payment. The seller conveyed a landlocked parcel and agreed to record a right of way to provide access.

    The discovery rule would likely prevent a statute of limitations defense. 

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  • Tricia Brock
    OP
    Saratoga, NY · Member since 2017 · 8 posts · 0 votes
    4y

    Thanks for the replies. The 1985 agreement reads: 


    "Whereas [parties A] is the owner of a two story frame house located near Street 1 which property lies southerly of Street 1. and Whereas [parties B] is the owner of a 50 foot right of way [she was also the owner of the land upon which this right of way existed, weird complicating language] described in a described in deed from Bowersox Construction Company to parties C** in 1980 and recorded in book...on page...

    Whereas Party A is desirous of obtaining the right to cross the said 50 foot wide right of way so as to gain access to their property from Street 1. 

    Now therefore for one dollar and other valuable consideration it is agreed between the parties as follows:

    1. That Party B will deed to Party A a non-exclusive right of way for ingress and egress to the property of Party B from the end of Street 1 across the right of way described in book...page...(references 1980 ROW agreement). That said right of way for ingress and egress shall commence at a point...[describes the the shape of the right of way]. Which right of way shall be non exclusive and for the purposes of ingress and egress to the property presently owned by Party A as described on [their deed].

    2. This agreement shall inure to the benefit of and shall be binding upon the parties hereto,their heirs, executors, personal representatives, administrators and assigns." Then it is signed and notarized.

    **The prior Bowersox right of way referenced above is a prior right of way to a 40 acre property left of the "Neighbor's Property" on my sketch that is described as "TOGETHER with a right of way across lands of [Party B] for the extension of Street 1 in a general westerly direction at their present widths...This right is given to Bowersox construction Co. and may be assigned by it to the owners of any portion of the real property conveyed herein, with the intent that said rights of way shall become public thoroughfares. (Supposed to become a public thoroughfare, on the same land as the ROW to my property but the buyers attorney feels it is not applicable as it is technically a different ROW than the one granted to our property)


    As of this evening the recent objection of the buyers attorney pertains to the language of "will grant to" and no record that she ever did actually deed to.


    Personally that feels like insufficient grounds to invalidate this prior ROW agreement. However my attorney feels the best course of action would be to simply pay the 12k as he is afraid if we look for new buyers because this attorney is being difficult she will tell her friends (my neighbors) not to work with us. At which point we would need to pursue litigation which would probably exceed the cost of the $12k.


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  • John T.
    Rental Property Investor · Central U. S. A. · Member since 2013 · 296 posts · 149 votes
    4y

    You need to speak with a lawyer.   I believe that if you and your predecessors in title have been driving from the public street down a road or path and onto your property, then you might have a prescriptive easement (defined as:  an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement). 

    See a lawyer.  You can resolve this through litigation.  You might even be able to resolve the matter by agreement if the opposing party wants to avoid the cost of litigation. 

    You should consult with a lawyer regarding this issue.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y
    Originally posted by @Tom Gimer:

    @Peter Walther The agreement to record a right of way was expressly binding on the original parties' assigns. All subsequent owners of each parcel would have had notice of the obligation.

    There has been no information provided about non-payment, or whether the original agreement even required payment. The seller conveyed a landlocked parcel and agreed to record a right of way to provide access.

    The discovery rule would likely prevent a statute of limitations defense. 

    My opinion is of course based solely on the information in this thread.  That information includes the neighbor demanding $12.5k vs the $10k called for in the original agreement.  That leads me to believe the original consideration was not paid and therefore the agreement fails.  In addition, I read "assigns" to mean an assignee of the agreement, not the owner of the benefited land.  If the agreement was intended to burden and run with the land, I think it would need to say so.  The fact the title policy excepted access rather than the commitment requiring an executed agreement makes me think the underwriter also concluded the agreement isn't enforceable as it stands.

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  • Tricia Brock
    OP
    Saratoga, NY · Member since 2017 · 8 posts · 0 votes
    4y

    Thanks for your interpretation Peter. The original 1985 agreement called for $1.00, I do not know if this was paid, the language of the agreement would make me think it was paid at the time of signing but I do not know that. These neighbors originally asked me for 10k then raised it to 12.5k like 2 days later. 

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Peter Walther I guess we'll agree to disagree. 

    A right of way for ingress and egress runs with the land unless it expressly terminates upon some occurrence or does so by the merger of the servient and dominant estates. A record obligation to deed a right of way which is binding upon a party's heirs and assigns would do the same. Perhaps @Tricia Brock will elaborate on the issue of $10k vs. $12.5k as that issue is not at all clear from the fact pattern. Why would the current owner feel like they're entitled to the $ and not the original party who agreed to grant the access?

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y
    Originally posted by @Tricia Brock:

    Thanks for your interpretation Peter. The original 1985 agreement called for $1.00, I do not know if this was paid, the language of the agreement would make me think it was paid at the time of signing but I do not know that. These neighbors originally asked me for 10k then raised it to 12.5k like 2 days later. 

    Thanks for the clarification Tricia, I thought the agreement called for a $10k payment.  Unfortunately, in my experience your attorney may be correct in the cost analysis, though it may be wise to get a second opinion.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y
    Originally posted by @Tom Gimer:

    @Peter Walther I guess we'll agree to disagree. 

    A right of way for ingress and egress runs with the land unless it expressly terminates upon some occurrence or does so by the merger of the servient and dominant estates. A record obligation to deed a right of way which is binding upon a party's heirs and assigns would do the same. Perhaps @Tricia Brock will elaborate on the issue of $10k vs. $12.5k as that issue is not at all clear from the fact pattern. Why would the current owner feel like they're entitled to the $ and not the original party who agreed to grant the access?

    You're assuming there's a ROW, I'm assuming there isn't, there's an agreement for a ROW which was never created.  If so, why would the current owner of the property to be burdened be forced to agree to an easement?  I wonder if the neighbor has a title policy and if so, does it have an exception for an easement?  If there is a policy, I wonder if it's written on the same underwriter as Tricia's?

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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Peter Walther I'm not assuming there's a ROW. I'm stating that the agreement to deed a ROW for ingress and egress across parcel A is binding upon the current owner of parcel A and enforceable via the courts. I would not be extorted by the neighbor... I would get my access via court order. 

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  • Paul Sofia
    Lender · Charlotte, NC · Member since 2016 · 371 posts · 172 votes
    4y

    Based on your diagram, I would ask the other neighbor if they would grant you an easement.  It seems the other one is quite unreasonable.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    4y
    Originally posted by @Tom Gimer:

    @Peter Walther I'm not assuming there's a ROW. I'm stating that the agreement to deed a ROW for ingress and egress across parcel A is binding upon the current owner of parcel A and enforceable via the courts. I would not be extorted by the neighbor... I would get my access via court order. 

    Ok

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    4y
    Originally posted by @Bruce Woodruff:

    I don't know if this will help but i hope it might. I bought a property out in the middle of nowhere that was land-locked like this (that's the legal term). Found out that Federal law has a clause that prohibits landlocking  property, i.e. every property owner must be guaranteed access to their property. Here is a link to some info:https://pocketsense.com/federa...

    I bet one of our legal contributors have some input as well.....

    while basically true its not true in all cases..  been there done that ... one in CA and one in Oregon actually a few in Oregon.

    Although I wonder if our OP  actually read her title commitment or just took the attorneys word for it that everything was fine.

    I find in east coast states its not SOP to deliver an actual written title commitment to the buyer.. the attorney just says Yup everything is fine as you noted thats clearly a landlock clause and access was not being insured by that company.  its more common though that one title company misses the land lock and another picks it up when you got o sell.. then you make a title claim to the first one that missed it and they have to defend it or pay out on the policy.

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    4y
    Originally posted by @John T.:

    You need to speak with a lawyer.   I believe that if you and your predecessors in title have been driving from the public street down a road or path and onto your property, then you might have a prescriptive easement (defined as:  an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement). 

    See a lawyer.  You can resolve this through litigation.  You might even be able to resolve the matter by agreement if the opposing party wants to avoid the cost of litigation. 

    You should consult with a lawyer regarding this issue.

    probably cheaper to simply pay the 12k if the other party has money this could be tied up for a while and cost as much or more than the 12k 
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  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Jay Hinrichs While I agree that fully litigating this would cost more than the $12.5k being "offered", it would cost the neighbor plenty to defend a suit as well. (And as I've indicated above, I think they lose.) A properly drafted demand letter would go a long way here, IMO.

    With an existing ROW granted to an adjacent neighbor through the same area do you really think they'll spend a bunch of cash to defend this land? 

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