Private Road Matter

[kidkioti]

Some years ago ( approx 5 ) a private road ( approx 1/2 mi ) was needed to be constructed to provide the residents with a way out. Road was constructed next to my property. I was informed that additional construction was going to be needed so this road could be surveyed, a maintenance agreement established, etc. so process could be completed & finalized. Seems like an unusual way that this was done?? but that may be another matter.

This additional construction would now include a piece of my adjoining property in order to finalize the road? Do I have any say or consideration in this matter? I have no idea on how much land this would require and if they will need a right of way?

I was informed that Construction to finish the road is scheduled to start on or about the 27th. Any and all input would be appreciated. Thank you very much! KK

 

[dodge man]

If this is a government body, township, county, state, city etc., you really don't have a say. You would still have to sign an easement, or they would have to buy the right of way, but they could condem it and take it through the courts if they wanted it. Its called the right of eminent domain.

If its a private road, except for very rare circumstances, you would have to agree to let them put any of the road on your property. In other words, you could say no. If I were you, I would want to know the details of what they are doing. If it doesn't look like it hurts you too bad, you could agree to it if you so choose. If you don't like what they are doing, you might have to get a lawyer and get an injuction to stop them. If they mess up you land, they would be liable for damages. I don't know the details of this, and I'm not trying to create a problem where one doesn't exist, but it almost sounds like they are trying to steam roller over you for this little road project.

 

[High Compression]

I'm not sure about the state laws where you are. I own a construction company in Kansas. Our projects always have to have a temporary construction boundary. That boundary has to be approved by the local governing body, (city, county, etc.) and the surrounding property homeowners before construction can even begin. If they need to use your property for a temporary time, they should ask you formally in writing and tell you exactly how much property, and for what time frame it will be disturbed, and a restoration plan to return it to "as good or better" that before. If you are not satisfied with their proposal, you should be able to tell them no until you are.
Now if this is to be permanent, they will need to obtain an easement from you that they will have to pay you for. You should get fair market value per acre or sq. ft. depending on the size of the piece of property.

 

[dmccarty]

Good posts so far....

What does your deed say?

Is there a survey that shows you land and the road?

If you do not have these items get to the courthouse and look it up. You might be able to do this over the Internet.

We live on a private gravel road. The road is clearly shown on the subdivision and lot surveys. The road and its easement are clearly show on the survey. It has been awhile since I read the deed but I believe the road is described in it as well.

I would check out the county deeds office and pull the documentation if I did not already have it in my possession. Our county also has a GIS aka mapping office. Check with them as well since they should have not only "maps" but also overhead photos showing the property lines and who owns what for tax purposes.

When we were looking to buy raw land we spent quite a bit of time in the deeds and GIS offices. We learned quite a bit buy pulling paper work and talking with the employees.

This should cost you nothing. The only time I had to pay for something is when I would get a big print out of a parcel. Fair enough. At the same time I would start finding a good real estate lawyer for proper advice. They should talk to you initially at no cost.

Regarding the road maintenance agreement. Who is going to create it, who sets the rules, can you provide input to the agreement, who gets how many votes, how much money can be assessed, etc. Start thinking about these things and ask the developer questions.

Later,
Dan

 

[greasemonkeyok]

Good info above.

If it is a maintenance "agreement," by definition it implies you have some say in the matter. In some states, there are Section Line easements that can be opened up at any time by the government. If you don't like what they plan to do, get professional help.

 

[Rustyiron]

Some years ago ( approx 5 ) a private road ( approx 1/2 mi ) was needed to be constructed to provide the residents with a way out. Road was constructed next to my property. I was informed that additional construction was going to be needed so this road could be surveyed, a maintenance agreement established, etc. so process could be completed & finalized. Seems like an unusual way that this was done?? but that may be another matter.

This additional construction would now include a piece of my adjoining property in order to finalize the road? Do I have any say or consideration in this matter? I have no idea on how much land this would require and if they will need a right of way?

Was your property part of these other lots? Or did it stand alone and you were there before this "development". It is possible that if your piece was part of the orig. plans that I assume were submitted for whatever local approvals were needed, that this should be recorded on the site plan and it may be that you were not informed. If your prop. has nothing to do with this driveway and it will not service your land, it seems to me that they don't have the right to build or grade any part of your land!

 

[kidkioti]

dodge man - This all came about when our State Dept of Trans decided that our prior access was dangerous and we had to find another outlet ASAP. Approx 1/2 mile was needed. Private Road was put in and built ( about 5 yrs ago ) and not completed in the matter some of the residents expected it to be. One of the residents has an attorney to represent his concerns an it appears that the people that did the construction will be returning to expand and complete the job. The lawyer that took on this matter for all of us has been AWOL and Incommunicado.

We were only given a general idea of where the road was to go. The attorney representing us said that when it is complete it will be surveyed, than entered ?? to make it official than a maintenance agreement will be drawn up. Not sure what the protocol is supposed to be.

It seems that there has, will be, and going to be more questions to answer in order to get the rest of the story. Thank you for taking the time to reply. You presented a very good suggestion. KK

 

[kidkioti]

Good posts so far....

What does your deed say? Is there a survey that shows you land and the road?

Regarding the road maintenance agreement. Who is going to create it, who sets the rules, can you provide input to the agreement, who gets how many votes, how much money can be assessed, etc. Start thinking about these things and ask the developer questions.

Later,
Dan

According to the Law Office that represented this disaster. The survey is supposed to be done after the road is completed. Than the maintenance agreement will be drawn up. Doesn't make sense does it?? Good question. Thank you!

 

[johnrex62]

Kid, who was directing the effort at the beginning of the construction? I don't know of any construction company that will start moving dirt without clear direction of what dirt to move and where to put it.

The survey and recording after the construction sounds normal. It is easy to make mistakes and have a road a few feet off where it was supposed to be and cheaper to survey and record rather than re-survey and re-record.

With the additional details I think I can see that this is a community road that you will benefit from as well, so it is not so much an imposition on you from the perspective of land confiscation as it appeared at first. The land needed to complete the right of way or maintenance support during construction is just your contribution to your own road. If you are putting in more contribution now than anticipated, you should negotiate a better deal in the maintenance agreement down the road to even it out.

In any case, this is not a matter of someone imposing anything on you as much as it is a case of the community banding together to fix a problem you all share.

 

[greasemonkeyok]

Are these facts correct?
a) Multiple tract owners, including you, were using a private road (old road) to enter a public highway five years ago.
b)State officials told everyone to stop using the old road and build a new access road to the highway.
c) New access road was partially constructed, and is presumably being used instead of the old road.
d) Now someone now wants to finish the construction of the new private road and include a portion of your property in the new private road expansion/completion.
e) There is no existing maintenance agreement relative to the upkeep of either the old road or the new private road.

Are the tracts platted into a subdivision (filed with the county records), or are they simply divided tracts conveyed to individual owners by metes and bounds descriptions? Are there deed restrictions or covenants in your deed? If so, is there a homeowners association?

 

[dmccarty]

According to the Law Office that represented this disaster. The survey is supposed to be done after the road is completed. Than the maintenance agreement will be drawn up. Doesn't make sense does it?? Good question. Thank you!

That does not make sense.

It would be like selling lots then doing a survey after the sale.

Our lots run to the middle of our private road. We actually have two lots sizes for each lot. :licking: One size is what is on the survey including half of the road. Hard to believe but the county does not include the road when calculating taxes. :thumbsup:

I would guess the road would be to your benefit, maybe, and that the road would only take up a small part of the lot. However, I would danged sure want to know how much land was going to be used. Given that you own the land, unless the road is in a legal document, I do not see how the developer can now build the road without your say so. He is not going to get Eminent Domain easily if at all. :laughing:

Sounds like the developer is doing this all backwards

I think you need to get a local lawyer with subject matter expertise to get advice. ASAP.

Later,
Dan

 

[orezok]

The "survey" after completion may be an ALTA survey required by the title company and many lenders. A parcel without legal access would be difficult or impossible to sell. I would suspect that some title company denied title insurance to a seller until legal access was established.

Definition as follows:

A land survey is made for the Title Company and/or Lender with the survey and location data needed for the issuing of title or mortgage insurance. For this purpose a map is drawn to ALTA specifications. "ALTA" stands for American Land Title Association.

ALTA specifies the data to be shown on the survey and this includes boundary lines, location of the main building including improvements, location of ancillary buildings, the identification of easements (access rights by service companies such as water, gas, telephone, railways and other utilities). ALTA surveys are very complex surveys and can cost tens of thousands of dollars and take weeks to complete. For that reason most ALTA surveys are performed on commercial properties.

An ALTA Land Survey guarantees to meet the requirements for an ALTA/ACSM Land Title Survey as detailed by the American Land Title Association, National Society of Professional Surveyors and the American Congress on Surveying and Mapping.

 

[Larry Caldwell]

This is pretty simple. If they have an easement, they can build a road on that easement. If they don't have an easement, they can't. End of story. I once made a gravel quarry move an access road because it crossed 40 feet of my land with no easement. They weren't happy, but they did it.

Any easement would be recorded on the title report you got when you bought the property, unless you subsequently granted an easement.

The county also upgraded a creek crossing on one end of my property, and bought another 20' of right of way. They paid me $300 and processed all the paperwork, plus agreed to upgrade warning signs on an S curve where people kept driving into my creek. Just keeping fuel and lubricants out of the creek was worth 20' of ROW to me.

 

[DAY]

Often a developer will build a road(s)- with all the required sidewalks, storm drains, etc-, then deed it over to the township, so the municipality will do the maintenance (snow removal, pot hole repair, etc).

Your situation sounds convoluted enough to warrant an attorney.

 

[dodge man]

First off, I doubt a ALTA survey would be or is needed, that is normally only done on comercial property.

I'll make some assumptions and see if it makes sense. It sounds like the road benifits the original poster also. If everyone is in agreement, it makes sense to just go ahead and build the road, then survey the actual location, and plat it and draw up the agreement for maintance. This is NOT the way it is normally done, but I don't see why it can't be done this way. Normally it is surveyed, a maintance agreement is made, then the road is built.

 

[RobertN]

I am curious about this; I live on a private road. The road is in the parcel maps, along with the easement lines.

Is the road work being done within the proper easement? There is an easement for the road?

I can hear the tractors right now cleaning the ditches on our private road. They are remaining withing the easement lines for the road.

 

[orezok]

First off, I doubt a ALTA survey would be or is needed, that is normally only done on comercial property.

I'll make some assumptions and see if it makes sense. It sounds like the road benifits the original poster also. If everyone is in agreement, it makes sense to just go ahead and build the road, then survey the actual location, and plat it and draw up the agreement for maintance. This is NOT the way it is normally done, but I don't see why it can't be done this way. Normally it is surveyed, a maintance agreement is made, then the road is built.

If it's a developer, they are a commercial entity and subject to their lenders requirements.

 

[Car Doc]

Get a good property lawyer right now is all I can say! Find the meanest most arrogant loud mouth judge hating guy you can they are in cahoots with judges so find one that doesn't like judges in general.

And even then a judge may improperly or illegally in other words take the property from you and force you to appeal the decision I have been there.

My deed didn't say one word about someone having access off of it to their ground but a local district judge thought otherwise and took 140' of my driveway and gave it to the adjacent property owner. I appealed it and won but at great financial loss that is the key here it will be at your expense.

The easement etc can and may well negatively affect your property re-sale value also.

 

[AGGIE00]

Dodge man is right and I'm guessing maybe a surveyor. Usually, and 100% of the time for us, a survey is done first and the easments established before construction. All parties have to agree on the easment before it can take effect in a private matter. If you are benefiting from the road, then there will be justification for no compensation for you, but if you won't benefit, then you can ask for reasonable compensation or not give the easment.

 

[AGGIE00]

I can't imagine an ALTA survey being required for this deal. The only ALTA surveys we have performed were on commercial properties where more than just a building footprint was required.