Ran into an interesting one. A million+ $ estate w 3 acres going to the steps very soon (multiple failed short sale attempts w large 2nd to be wiped). After doing my due diligence at the recorders office, I went to see the property courtesy of a guided tour by the listing agent. One of the disclosures, that could easily be missed by many prospective steps buyers, is that the property is “landlocked” … there are adjacent parcels on all sides and the main (private) drive to the property must crossover a parcel that does not provide any sort of “right of way” easement to the subject property. And this parcel is owned by the soon-to-be foreclosed upon owner. The owner is a nice guy. Met him and developed some rapport. But he is also quite frustrated over his current pending foreclosure circumstance. He poured over $2 million into this property and the opening bid is less than $500K. Hence the disgruntled owner is prepared to put up a gate on his parcel to prevent any new owner from accessing the property from the private drive (the only viable ingress/egress route). There is technically a way to build a new road on the only open side of the property, but it’s a steep slope and the build + permits would be very costly/time-consuming. The soon to be evicted homeowner wants $100K+ to grant the right of way via an easement. From was I’ve read, there may some case law out there that could effectively allow for a force-placed easement if there was no other means to access the property. But with time, permits and plenty of $$ (about $100K) you might be able to build a new road … so pursuit of this case law may end in failure if a viable alternative ingress/egress could be constructed notwithstanding time & high costs. Any thoughts or how similar experiences were addressed?
One other tidbit … Given the circumstance outlined above, I put in a lowball offer (accepted by homeowner as I was willing to pay him directly for the easement) to the lender that is controlling the short sale. No dice… the bank wants $75K MORE than their opening bid (posted) for steps sale. The bank is very well aware of the owner’s intent to block access, and they are more than happy to dump that problem over to an unknowing steps buyer. If it goes bank-owned, they apparently have a legal strategy to combat the disgruntled owner. DYODD.
How long has the road been in use? If they have used this easement longer than 5 years then you would have a case based on Easement by Prescription. It sounds like you could also make a case for Implied Easement or Easement by Necessity. Although it sounds like you would have a strong case it could end of costing a hefty sum fighting for it in court. Keep us posted!!
Thanks Michelle … The property just went bank-owned today. I regret that I could not get the homeowner to listen to reason and accept a reasonable offer for an easement + $4keys … he will likely block access to the property and wind up in a battle with the bank and their REO dept. The now ex-homeowner will probably lose this war. So instead of getting $100K for his easement, he’ll get nothing except a bill from his lawyer. I think you are exactly right … this is an “implied easement” … for many decades the fully paved private road has been used to provide access to the property. Moreover, the use of this long existing road does not impinge on the ability of the ex-homeowner to enjoy his other parcel (which he still owns). It’s also the only way for police/fire/emergency to access the property http://en.wikipedia.org/wiki/Easement