Landlocked!

Landlocked!  1/6/22
There are folks who do not now what this means. And a lot more do not know all that it implies. A parcel of land which is landlocked does not have any road frontage or, sometimes, any frontage on a waterway big enough for boats. This means you cannot see foot on your land without trespassing or without permission of the adjoining landowner of land that you must go through to reach your own.

Or…. Or you may have a Right of Way or an Easement so you are not trespassing or going in and out (“ingress" and “egress” is how they say it). These are legal documents or are part of legal documents that state your rights to use someone else’s land. These can also exist on land which has road frontage. The owner of that land cannot stop you from using his land, provided  that you are using it as proscribed in the documents.

There are many ways this is done and many forms a ROW or easement can take. You may be able to use it to get yourself in and out, but not other. Or, for example, using it for getting felled timber out may not be permitted. Or you may be able to use it to get machinery to and from a field for crops but not use it to get in to hunt. Or you cannot use it between midnight and 6 AM. Whatever. But most often, use is not restricted like this. I mention these examples to demonstrate what can happen.

Years ago, people were pretty off-hand about these things. They knew each other. “Sure Tom, you can go in and out. Any time you like”. “Well, let’s go in this way this time. Earl won’t mind.” Maybe good ole Earl won’t mind but his heirs might. Or the person he sold his place to might. If it’s been written down somewhere and signed, you have more legal legs to stand on. Some of these documents were never filed with the County and as such are not part of the record. But they may be legal. If you can find them. If it was filed, it still may not be in your deed. Why not? The ROW is a restriction upon your neighbors deed, not yours, so it needs to be there for anyone contemplating an interest in his property in  the future. A good lawyer back when would also have it placed in your deed as well. But it needs to be somewhere retrievable if it is to be legal.

Now, suppose there is no easement, no Right of Way? What do you do now?

You approach your neighbor and, very politely, ask him for a Right of Way. If he does not agree, offer him money, enough to change his mind. If he is still intransigent, approach another neighbor if you can. Then do the same thing. Remember honey catches more flies than vinegar.

If that doesn’t work, you can offer to buy his property, or perhaps just buy what you need. Or, sell him yours and be done with it. Remember, he hold all the cards. He knows your property isn’t worth much if he doesn’t play ball.

I once owned 80 acres that we split in two pieces to all to two parties. The dividing line was a driveway to a third property which was otherwise completely encircled by our land. When I researched the deeds, I discovered the tax maps were right. That property was landlocked. A survey had shown a road to get into it going through out land, but there was no easement or ROW. The owner hadn’t owned it long, so I had our lawyer check to see  if I’d made a mistake in my interpretation. No, I was right. So I wrote to this person saying we owned the land completely surrounding him and we were about to sell it. In the interests of being a good neighbor, did he want us to give him a ROW down the survey line?

His answer surprised me. “No”, he said. “I’m fine the way I am”. I repeated my offer and got the same answer. OK. Maybe he has a helicopter. If he’s happy, I am. We went back to preparing documents for the closing. Just before the day arrived, I got a call from this fellow.  He was eating humble pie. Thinking over what he’d said to me, he called his lawyer and, sure enough, the lawyer had screwed up and forgot to file the planned Right of Way. It was way too late to do so now. He was going to need that helicopter. The way I solved his dilemma was to ask my buyers if they were OK with allowing him to have the ROW  he thought he had. The agreed (good neighbors!) and I asked him if he would take care of the extra legal expenses that we now had to incur., He was delighted to do that and probably  had been sweating that we’d ask for many thousands of dollars to allow him to use his own land. He’d already started excavation for his new home.

If you don’t get a someone like on the other end, what do you do, other than give up? You get a good lawyer - not a mediocre run-of-the-mill variety. Years ago, I was told by several people the New York State now allowed landlocked property owner to force a Right of Way  if they could not get one any other way. Wanting to know as  I figured at some point this would be something I needed to deal with, I asked, over time, three real estate lawyer how it was done. None knew and all were skeptical. Not a good start.

It seems there are two ways this can be done and not all will work in all circumstances. You can get a ROW by Prescription. Analagous to Adverse Possession, this works if you have used the neighbor’s property to get to yours in a ”hostile, open and notorious way” for a number of years. By “hostile” we mean you made him no payments and did not have permission; you don’t have to be feuding with him. The other way is by Necessity. Here, you need to establish that the land would not be useable without it and that one had to be implied  when it was firs landlocked. You’d have to prove it never had frontage or was once part of a larger tract which did. If a previous owner had neglected to grab or record the easement of ROW, you would need a court order to enforce it. It’s easier if the owner of the land you need to go through was once the owner of the land you want to buy or own now. This is the kind of stuff you bring in lawyers for.

Getting access does not necessarily mean you can drive in. Access by walking or by boat may be considered legally sufficient. I had a client who for some reason sell off his woodland. It was hard to get to as a large beaver pond separated his open land from his woodlot, He’d made sort of a earth bridge to accomplish his logging. . So - bright idea - he said he’d give the new owner a legal Right of Way In. What did he come up with? It was 15’ wide, following the northern boundary of his land as it twisted and turned. This was not the way he used himself.. There were two right angle bends along the boundary. Think about this. How can you make a right angle turn in a vehicle in only 15’? Worse yet, you’d need a amphibious vehicle to get across the pond. It was several feet deep at that point. We declined the listing.

We saw and ad for a large woodlot in the Southern Adirondacks. $100/acre at a time when go land was around $1000/acre, How could you go wrong? As I guessed, the land has just been heavily logged. It would be 20 years or more before another cutting could be taken. But it was not a bad piece of land, not at all swampy as I’d feared. But it was landlocked. There was an obvious road in and we were told by the agent who owned it and where they lived. We knocked on the door. It turned out to be a woman who my wife, a nurse, had helped during the death of her husband. Of course she’d let us walk in. She didn’t recommend driving with our 2 wheel drive low clearance vehicle. We don’t mind a walk and took one, knowing we wouldn’t buy it no matte what we found. The lady said she’d let us go in and anybody else she lied, But she wouldn’t sign any documents giving anyone a the right to drive in. It was important for her to retain that control. Well, that’s fine until one of us dies or sells. Then all bets are off. No thank you. This is the stuff that long drawn-out and costly lawsuits are made of and we didn’t want any land bad enough to step into that mud puddle.

I routinely attend county auctions of  tax-foreclosed land whenever I can find the time. Landlocked parcels are popular in these sales. No surprise: a naive buyer gets this wonderful parcel at a bargain-price only to find out it he can’t get in. After a few years, he gets tired of paying taxes as if he could use it, so he stops paying. The county take possession ion it in due time and it goes to auction, only to have th process repeated. In Schoharie County, they have a policy of not allowing landlocked land sold unless there is an easement or ROW - or the successful bidder owns adjoining land. They then require the parcels be combined so the County doesn’t get into this again in the future. Smart of them. And it’s slowly eliminating such parcels.

Now, suppose you get yourself a ROW, there are other questions that need to be addressed. Who pays for maintenance? The old owner won’t want to pay for you to get to your land, but he might want you to pay him if for part of the way in you use his driveway. In general, if you want it nice, you now have the right to spend as much as you want on the ROW, provided you do no harm to the owner through whose land you are traveling. In other words don’t put a road across a wet area without putting in culverts to avoid flooding his land. If you rut up his own driveways, then be prepared to promptly repair them. Twice I have owned land on a private road. I had the legal right to use the road, no problem. On one, a person who owned land past mine demanded I pay a share of the maintenance to his land. On the other someone repaired the road, plowed the snow and took care of its I never found out who, nor in the 15 years I was the owner was I ever asked to contribute. And in neither case did I ever find documentation of my obligations, or even if there were any. Someone screwed up; it should have been addressed when the development was first done.

You could be in the position of not needing a ROW, then finding out you do. For example if your land was accessed by a little-used town road, and the Town later abandoned the road. What do you do? Or suppose your access was taken by Eminent Domain (the government has the right to take personal property when it is perceived important to the general public)? Or maybe a stream changed course. When that does, ownership changes can happen if the stream was considered the boundary. The answer to this, if there is one, is spelled “G-O-O-D  L-A-W-Y-E-R”. And don’t ask me.