Property lines/easements

[USAFpj]

My Uncle posed this question to me, and aside from getting an answer from my land surveyor, what are your thoughts on it? I'm thinking an easement document will have to be drafted up between the (2) owner's, who happen to be family members. His goal is to divide the log road and culvert bridge in half, allowing passage by either.

"I'd like to find out in SC, if a private road has a property line down the center of it (such as the culvert crossing on logging road), I want to make sure neither party can refuse passage to the other party? I know that sounds crazy, but I would like to know. Another words, each party is automatically entitled to right of way. This would help me on marking the line."

 

[oosik]

There are many, many items that must be considered when talking about dual access to one piece of property. A surveyor may be a good starting point but, unfortunately, it will probably end in a discussion with an attorney. I can almost guarantee the "laws of land/access" vary between states and any answer I could give would only apply to my local.

No, unfortunately, your concern is not the least bit crazy. An easement document is between two or more parties. The owner(s) of the land grant easement to another party(s) to use a section of their land, as described in the easement, to construct & maintain access (a road) into, across and onto a property or adjoining property. This "granting of easement" usually runs with the land(lasts forever) and passes on to heirs, assigns, grantors etc.

As you can see the easement can be granted equally to multiple parties. There is no need to divide the road etc.

Sounds like the beginning of a beautiful relationship - - good luck.

 

[s219]

Dividing in half is probably not real feasible -- that only works for stuff like sandwiches. Instead, there can be a shared access easement that covers the entire road width. Normally, the line would be set to one side of this easement, which then eats into one of the properties. If acreage is an issue, locate the line and easement so that it balances the want you want.

In my section of the county, there are a lot of easements. In some cases, access to property B is through an easement on property A. In other cases, with access to multiple properties through other properties, each property has a narrow utility easement to the main road (in parallel, like stripes) and a common road easement that passes through the properties. Each property owner owns all their land, but the easements going through their land give utility and access rights to others.

I know this stuff gets messy in some cases, but an easement is what is needed. Dividing a road in half would probably be frowned upon, and it can fail if any of the parties decide to restrict their half. I'd suggest separate driveways before splitting a road into halves. An easement lets you keep the current road and designates its use. Anyone buying the properties will have to acknowledge and agree to obey the easement.

 

[USAFpj]

Thanks for the detailed, and quick reply. Just to ensure that I'm not confusing the subject, as of now, there are NO property owners. A large parcel is being sub-divided for (3) siblings, and my Uncle would like for the property line to divide this log road. Is it still smarter to give the road to just (1) of the siblings, then do an easement document for the other sibling?

 

[Capricious]

If I understand the question correctly, you are talking about subdividing a property which has not yet been subdivided, and how should an access road straddling both properties be set-up??

If that is the case, and assuming you want a right of way, say, 50 feet wide in total, you can record a 25 foot easement on each property. That is what was done here, for example:
http://www.ozarkland.com/Zach'sMountain/4/PortfolioGallery/Plat.jpg



The wording of the easement is important; for "ingress and egress" limits use of the easement to just that. Also, who takes care of maintenance?

What about the future running of utility lines? This would also be a good time to consider any restrictions, "set-backs" and so on. Also, any possibility that some time in
the future this road may be turned over to the county? Maybe the land might be further subdivided? does the right to use the easement extend to all future owners of
any portion of the parcels?

Setting it up correctly now will save many many headaches in the future. Litigation over "private" roads keep rural lawyers in profits.





EDITED TO ADD: Here is another plat where the access roads are basically an easement running along the boundaries of the properties, with an equal portion of the easement to each side of the boundary:
Plat Maps

I am showing these plats simply because I happen to be aware of them.

I have property that I am considering subdividing into (5 ) parcels, and the access road will be set-up in this manner: 25 feet of easement to each side of the boundary.

Keep in mind that at some point some or all of this land will be sold out of your family. While an informal agreement may work amongst family, it will probably not work between strangers, and such issues can greatly affect the future value of the property.

 

[newbury]

State law rules.

In Mississippi all land is accessible. I've a remote property that borders an 80 acre landlocked parcel. A forestry operation cam in and cut a road thru my 6 year old pine and even put up a log landing without asking. I didn't discover it until I saw it on Google maps. My lawyer and the state forester said there was nothing I could do that would be worth while.

In Vermont it's not the same.

Yet in Mississippi ALL land is automatically NO TRESPASSING, in Vermont land HAS to be posted.

 

[Capricious]

Some "light" reading on South Carolina easement issues @ South Carolina Lawyers Weekly:

Easement | South Carolina Lawyers Weekly

 

[2LaneCruzer]

If I understand the question correctly, you are talking about subdividing a property which has not yet been subdivided, and how should an access road straddling both properties be set-up??

If that is the case, and assuming you want a right of way, say, 50 feet wide in total, you can record a 25 foot easement on each property. That is what was done here, for example:
http://www.ozarkland.com/Zach'sMountain/4/PortfolioGallery/Plat.jpg



The wording of the easement is important; for "ingress and egress" limits use of the easement to just that. Also, who takes care of maintenance?

What about the future running of utility lines? This would also be a good time to consider any restrictions, "set-backs" and so on. Also, any possibility that some time in
the future this road may be turned over to the county? Maybe the land might be further subdivided? does the right to use the easement extend to all future owners of
any portion of the parcels?

Setting it up correctly now will save many many headaches in the future. Litigation over "private" roads keep rural lawyers in profits.

True. Keep this in mind; an easement is simply a right to use the property, it does not normally imply ownership to the land itself. Under common law, and most statutory law, a land owner has a right to access his property, even if it is landlocked. This means that the surrounding landowners, by law, have to allow the landlocked owner to drive through their land whether they like it or not. It does not mean that it's free; they may have to pay for it, and it may take a judge to make it equitable.

You might think about making the easement run with the land, that way it wouldn't go away if and when the land is ever sold. This might also be an important factor in determining where to place the easement.

 

[USAFpj]

Hey Capricious, let me know what the site says, then just give me the 'Cliffs Notes' version:laughing:.

Seriously though, thank you very much for the links and replies. I still can't get over how informative this site has been for me.

 

[Capricious]

Other things to consider: You mention a "logging road." Do any unrelated property owners utilize this same road? Has "the public" been using this road? A road can become a "public road" a lot easier than many people consider, depending upon state law.

 

[USAFpj]

No other parties use the road. My Uncle is a smart man, just low on time, so I go to my trusty source here at TBN! My recommendation is to just give the road to one sibling, and then that sibling would grant an easement legally on the deed/survey. Seems to be a long term treatment compared to dividing the road in half for both parties to use. Like you said, that may invite trouble for future generations.

 

[davrow]

Slightly different for me... not only in California but in two community associations (HOA). In one the HOA is limited in what it can own, so ALL the roads are owned by the adjacent landowners - right down the middle. With permanent easements on the road so anyone can travel on them. I own my half, but I have no control over it. In the other HOA the roads are all 'common property' and no part of them conveys with the title to my property.

I don't see any practical difference. As long as it is all legally defined and binding there should never be any issues.

 

[JSanders10]

No other parties use the road. My Uncle is a smart man, just low on time, so I go to my trusty source here at TBN! My recommendation is to just give the road to one sibling, and then that sibling would grant an easement legally on the deed/survey. Seems to be a long term treatment compared to dividing the road in half for both parties to use. Like you said, that may invite trouble for future generations.

Having dealt with something similar in the past few years, here in Alabama, we granted deeded access.

You really have two choices, give 25' of deeded easement to both, splitting the logging road down the middle, or give one owner slightly more with the entire road, and include an ironclad deaded access to the other acreage.

Personally, for keeping it all even, I would prefer the former.

 

[dodge man]

I'm a land surveyor and have done what you describe on several occasions. There is nothing wrong with dividing the property down the middle of the road and giving both parties the right to use it. It would probably need to be surveyed and located and shown on the survey. For example say the road runs north and south and the parcel on the right is called "tract A" on my plat and the parcel on the left is called "tract B'. I just put a note on my plat with a leader line pointing to the road and say something like "30 foot wide private ingress and egress easement for the benefit of both Tract A and Tract B". I then show the new boundary line going down the middle of the road and a dashed line 15 feet either side of it. After that a lawyer will know the correct language to put in the deeds.

 

[dmccarty]

Our property lines go to the middle of the road but there is an easement over the road for the property owners.

If it was me, I would try everything I could to avoid an easement in the first place. Plenty of horror stories about easements on TBN. Avoid them if at all possible.

Later,
Dan

 

[houstonscott]

I would separate the road into a third property owned by both, keeping the home property lines separate. An agreement could then drawn up about how it will be maintained and access. HS

 

[Capricious]

Our property lines go to the middle of the road but there is an easement over the road for the property owners.

If it was me, I would try everything I could to avoid an easement in the first place. Plenty of horror stories about easements on TBN. Avoid them if at all possible.

Later,
Dan

The problems are with improperly done easements. One never hears about the (literally) millions of properly-done easements where there is never a problem.

I have one parcel where 30 feet ( or 40 feet, depending upon which piece of paper you are reading) along one boundary is easement for a county road. It is no problem.

As before, I would suggest thinking into the future: allow for the running of utility lines, allow for the further subdividing of the parcels, and make the easement wide-enough for
the county to accept it as a county road at some point in the future.

Just because there is a 50 foot easement does not mean that the road has to be maintained at 50 feet wide now.

 

[Capricious]

I would separate the road into a third property owned by both, keeping the home property lines separate. An agreement could then drawn up about how it will be maintained and access. HS

Well, I would not do that. A extra deed and recording fee, if nothing else. I imagine extra surveying costs as well. And then how are the real estate taxes handled?

If two parties are going to have trouble with each other dealing with an easement splitting a boundary, they are certainly going to have trouble dealing
with a separate parcel of property jointly owned.

As I posted before, I have a property I intend to subdivide at some point, and the road will be a properly-recorded easement of 25 feet to either side of the
boundary, for a 50 foot wide right-of way, with provisions for utilities, and with the possibility of eventually transferring the easements to the county.

 

[JRobyn]

If I understand correctly, what you want to do is exactly the way my (and my in-law's) property is done in TN. We have a "common-use access easement" road that divides (runs between) our property and the adjacent landowners. When I sold a portion of my property to my in-laws, we made sure that just a little bit of their property line was also in the existing "common-use access easement". It is written into all three deeds.

How this happened is that originally, it was all one large parcel with the road running down the middle of it. When the earlier owner's heirs inherited and sub-divided it, they used the road as part of the boundary, and each new portion had the "common-use access easement" written into the deed.

It has worked terrific, except that the adjacent property owners (original heirs) are non-resident and don't participate at all in road maintenance as they are really supposed to. On the other hand, when I asked for their permission to run a water line down the middle of the road, and to install a gate and gate operator across the road, they had no objections. I suppose it might go badly for me if they should ever suddenly become cranky and try to dig up part of the waterline where it doesn't stay exactly in the middle of the road, or tear down the gate! I've given their whole family, and anyone else they have specified, access codes for the gate opener.

- Jay

 

[dmccarty]

The problems are with improperly done easements. One never hears about the (literally) millions of properly-done easements where there is never a problem.

...

We have a properly done easement. It is a PITA. Anytime you have more than one person/group/family trying to control/maintain land/road you are asking for problems. All of our neighbors get along, except one, and that one is a PITA and causes problems. Had similar problems in another subdivision were I owned land and I know of another place that had issues.

There are numerous posts on TBN over the years about easements. If anyone has not read MDBARB's odyssey, http://www.tractorbynet.com/forums/rural-living/14251-help-i-need-legal-advice.html, tap a keg of beer, bring in a load of wood, and start reading. Freaking nightmare and he ain't alone. We have an easement and it is a necessary evil for many, including us. If I could avoid an easement, and it sounds like the OP can, I would do it in a heart beat.

• Who puts in the road or driveway?
• Who maintains the road or driveway?
• Who pays for the work?
• How often is the work done?
• When is the work done?
• How is money collected for the work?
• Who collects the money and disburses it?
• Blah Blah Blah

All of the above can be put into a properly done easement but what does one do when someone disagrees with said easement and/or decides to do there own thing? That is when the scat hit hits the fan and the fun starts. Been There, Done That and Bought the T Shirt. Twice.

Later,
Dan