Most people assume that if their road has a road sign or shows up on the city map they live on a public road. Or, at least if the road has been there for years, no one would question their access rights. Unfortunately, lending standards have changed over the years and you or your potential buyer will not be able to get a conventional loan if your property is not served by a recorded easement or platted street. There are several possible scenarios.
Many older roads, especially those curvy old private roads serving lake cabins, have been there for years but there has never been a survey to locate and describe the actual road. This creates a title objection. From a practical standpoint, no one usually disputes your right to use this road but until you get a recorded easement or complete a quiet title action in court to confirm your rights, you don’t have legal access. These issues often come up for the first time just weeks before a closing. If you have numerous owners along a road, it takes a lot of time and explanation to get everyone to sign an easement. With lake cabins, the owners are often hard to find and often not around when you need them. And, more often than you’d think, someone is simply unwilling to sign and then the weeks of effort to get that easement are wasted.
If everyone won’t sign an easement agreement, you are left with going through Court. Your claim would be that you have a prescriptive easement as you, or your predecessors in title, have been using that road for more than fifteen years. This usually goes by default as no one can really argue your claim but it still takes months to get a court date and of course lawsuits cost more money than anyone would like to spend.
If you live on a platted street, you should have no concerns. One possible issue is that roads often get constructed and some or all of the road lies outside the platted street or legal description of a private easement. In that case, to correct the title one should really obtain an easement where the road actually lies and then vacate the portion platted but not used as a road. Until then, your property is actually burdened by two easements; where the road is platted and where if physically lies. If you live on a road with a recorded easement that matches the actual location of the road, you have no worries!
The lesson to be learned here is that access issues can often kill a real estate deal as buyers aren’t willing to wait for you to fix your title. Ideally, before listing your property, check into the legal status of your road and if you find issues you can take the time it requires to talk with everyone and hopefully solve the problem peacefully with your neighbors and avoid the Court system.
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