The Best of the Legal Hotline: Can You Get There?


 Tracy Rucka  |    June 10, 2019
Best of the Legal Hotline

Landlocked properties

What does it mean for a property to be landlocked? 

The definition of ‚Äúlandlocked‚ÄĚ is not as clear cut as one might think. There are many lots in Wisconsin that do not have legal access to a public road, and accordingly, are considered landlocked. Although such parcels may be sold, the valuation of the property may be tricky if there is no legal access.¬†

Another and possibly more important question is: what type of access is available? A parcel may have an easement for ingress and egress, but does the property owner have the authority to cross another owner’s land via motorized vehicle? A unique question, not yet addressed by Wisconsin courts, relates to properties adjacent to a waterway. Arguably a property is not landlocked when the owner may access the property from a lake or river.

A buyer with questions about access may draft the offer as contingent upon either obtaining a means of legal access or defining what type of access is available. A buyer who is aware of an easement for access should, with legal counsel, review the terms and conditions of the easement that grants access to assure the easement allows for the buyer’s intended use. 

The seller disclosed that the property is landlocked. Can the property be sold? If so, what can the buyer do to ensure access after the transfer? 

A buyer considering the purchase of a landlocked parcel may draft the offer as contingent upon obtaining a means of legal access. To obtain access, the owner of a landlocked parcel may try to purchase additional land to build a private driveway or secure private road easement rights. Generally the adjacent property owners are contacted in an attempt to negotiate an easement, which would be drafted by an attorney. Any easement should address issues such as the type of road to be installed, the type of driveway surface, the responsibility for expenses and maintenance fees, and any limitations concerning use of and access to the road.

The seller has a landlocked property. The seller is negotiating with a neighboring property owner to obtain an easement to the property the seller is wishing to sell. What should be included in the easement agreement?

An easement is a limited right to use someone else’s land. A well drafted easement will document the agreement between the parties detailing the location of the easement, the scope of the easement, the use of the easement, and maintenance relating to the easement. In the event the easement is ambiguous or the use of the easement changes over time, the parties or their successors in interest may disagree about the easement. This, coupled with the fact Wisconsin does not have an easement maintenance statute, means proper drafting is critical. Even though a court can decide how to interpret the easement provisions if the parties cannot reach a mutually agreeable resolution, a well drafted agreement will avoid such need for litigation. Therefore, when entering into an easement, the parties should rely on legal counsel for drafting and recording their agreement. 

The broker is listing a piece of hunting land. The seller is the personal representative of the estate of the former owner. The former owner and neighbor were the best of friends, and everyone thinks the neighbors had an agreement of some sort for access to the hunting land. While everyone assumes there is an easement, there is nothing on title. What’s the best way for the parties to proceed?

Gentlemen’s agreements are notorious for involving persons with different recollections of the terms and conditions of their agreement. As a first step, it may be beneficial to work with the title company to confirm that there is no recorded interest. If no interest is found, the question for the estate’s attorney is whether there was a license, an unrecorded easement, or a possible and legitimate claim by the property owners for some form of adverse possession. 

If the neighbor is still alive, it may be possible to obtain confirmation of the nature of the original agreement. If the neighbor is agreeable, a written easement may be drafted reflecting the assumed long-standing agreement. If the neighbor refuses to participate in drafting a new easement, the estate may attempt a claim for a prescriptive easement. A prescriptive easement is an easement established by adverse possession. A prescriptive easement is created when a person uses land without permission 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 and prove the elements listed in Wis. Stat. § 893.28. Once established, a prescriptive easement is permanent.

Proper use of an easement

There are homes located on a private road that all have an easement to use for ingress and egress. The easement agreement doesn’t state the type of ingress and egress, such as walking, biking, car, truck, UTV, snowmobile or another form of transportation. The owner of the land claims no one can walk or ride a bike, UTV or snowmobile on this road except the people who reside on this road. Can the owner of the land dictate the means of transportation in the easement? 

The starting point for the parties is to have the easement reviewed by legal counsel. The broker would refrain from answering questions or giving legal advice about the easement. Generally, the scope and permitted use of an easement are expressed within the document. However, depending on the drafting, problems may be encountered. The use of an easement generally must be in accordance with and confined to the terms and purposes stated in the written document. Although changing needs and circumstances may change the reasonable use of the easement, such analysis requires legal counsel. 

How to obtain access

If a property does not have access, what are some of the options to obtain access? 

Landlocked owners do not have a legal means of access to the public roads. The owner of a landlocked parcel may try to purchase additional land to build a private driveway, secure private road easement rights, or establish a prescriptive easement or way of necessity. Any easements 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 of and access to the road.

Government intervention 

If a landlocked owner cannot obtain access rights through private initiative, he or she can petition the government pursuant to Wis. Stat. § 82.27 at legis.wisconsin.gov/statutes/Stat0082.pdf, asking the town to build a public road to the landlocked property. 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, it 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 also will be assessed to pay for the road construction and cost of land acquisition. The landlocked property owner is also responsible for the town’s attorney fees, survey costs and valuation expert fees.

Landowner A has a parcel of land in northern Wisconsin. The only way to access the land is by driving over the neighboring land belonging to landowner B. Can landowner B deny access across his land? For generations, landowner A and his family have been accessing their land by driving on a trail through landowner B’s property. Landowner B wants to close off the trail and no longer allow access. Can landowner B stop use of the trail? 

Maybe, maybe not. In general, easements are negotiated between adjacent landowners, reduced to writing by legal counsel and subsequently recorded. Not all easements, however, are in writing. If landowner A has been using the trail for years, landowner A may file a declaratory judgment action asking a court to recognize the trail claiming a prescriptive easement. 

A prescriptive easement is an easement established by adverse possession. This easement is created when a person uses land without permission 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 and prove the elements listed in Wis. Stat. § 893.28. Once established, a prescriptive easement is permanent.

If it can be proven the use of the trail in the past was authorized by landowner B, the elements necessary to create a prescriptive easement would not appear to be met. This would be a fact-based analysis. Landowner A should contact an attorney to review his or her options. 

Tracy Rucka is Director of Professional Standards and Practices for the WRA. 

Resources

Copyright 1998 - 2019 Wisconsin REALTORS¬ģ Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education