Landlocked Parcels

A way out?

 Tom Cullen  |    June 02, 2004

There are parcels located in Wisconsin that do not have access to a public road. These parcels are commonly known as landlocked parcels, which, as the name implies, cannot be accessed without crossing private property owned by another. Landlocked parcels are not illegal. They can be bought and sold just like any other real property. From a transactional perspective, the only additional requirement is a disclosure duty on behalf of the seller and real estate licensee informing potential buyers of the restriction.
Landlocked owners do not have an absolute legal right to public access. They do, however, have the statutory right to petition the government for access provided the landlocked owner has first attempted to purchase access rights through private negotiations.

The private negotiation process may result in the purchasing of additional land and the building of a private driveway. It is also possible the landlocked owner could purchase private road easement rights. This would permit the landlocked owner to build and maintain a private road on the neighbor's property. Private road easements should be drafted by an attorney and recorded with the register of deeds. The easement should address issues such as the type of road to be installed, the allocation of expense and maintenance fees, and the limitations, if any, concerning use and access of the road.

In some instances access rights could be established by prescriptive easement, also known as, easement by adverse possession. A prescriptive easement is created when a person uses land without permission (such as road access) in a manner that is hostile, visible, and open in a continuous and uninterrupted way for a period of at least 20 years. In order to establish and enforce prescriptive easement rights, a landlocked owner would need to commence an action in circuit court. A claim of prescriptive easement is generally restricted to privately owned land. Except in limited circumstances, adverse possession claims are not permitted against government-owned land.

If a landlocked owner cannot obtain access rights through private initiative, the landlocked owner can petition the government pursuant to Wis. Stat. §80.13. This statute provides a procedure whereby the landlocked owner may seek town approval to build a public road to the landlocked property. The property owner starts this process by filing an affidavit with the township. The affidavit must state that the property is landlocked and that the owner is unable to purchase or acquire access rights from an owner of the adjoining real estate or that the purchase price to gain access is at an exorbitant price.

Upon receipt of the affidavit, the township is required to hold a public hearing on the request within 30 days. The town must publish a class two notice informing the public as to the time and date of the hearing, along with personally serving the notice on the property owner. The decision to build a public road to the landlocked parcel is at the total discretion of the town. If the town board feels that a road is not in the public interest, they may deny the request of the property owner and the property owner remains landlocked.

If the request is approved, the town board shall assess the damages to the owners of the real estate to be acquired by the town and pay just compensation. The landlocked property owner will be assessed an "advantage" assessment to pay for the road construction and cost of acquisition. Advantages are deemed to occur because it is assumed the property is more valuable with road access. In addition to the advantage assessment, the landlocked property owner is also responsible for the town's attorney fees, survey costs and valuation expert fees. The costs and fees will be assessed to the landlocked owner regardless of whether the town approves or disapproves the road construction.

From a practical standpoint it is usually more economical and beneficial to the landlocked owner to obtain access right through private negotiations. If the town creates a public road, anyone can travel upon it. On the other hand, a driveway or private road easement can limit access and control the traffic. Furthermore, the acquisition cost, public road construction and related fees and costs are usually far more expensive than the cost to purchase the land privately. If, however, the landlocked owner cannot obtain access rights through private negotiations, the statutory remedy is available.

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