A recent WRA Legal Hotline question raised an issue that many REALTORS® may encounter. In the hotline scenario, a buyer was interested in a property with a driveway that appeared to serve a neighboring parcel, but the title work showed no recorded easement, and the seller confirmed there was no written driveway agreement. Does that mean the neighbor has no legal right to use the driveway?
Not necessarily.
Although title work may reveal no recorded easement, that does not always mean the neighboring property has no legal right of access. Wisconsin law recognizes several ways access rights may arise — some of which are not apparent from the public record. Because some access rights arise outside the public record, they may not be reflected in the title commitment or other title records, making additional investigation important.
Landlocked property
A parcel that does not have legal access to a public road is commonly referred to as a landlocked parcel. Although Wisconsin law generally requires newly created parcels to have legal access, many older parcels were created before those requirements existed and remain landlocked today. These parcels are not illegal, but access to them may present unique legal issues.
One option is the statutory procedure in Wis. Stat. § 82.27, which allows the owner of landlocked property, or property with insufficient highway access, to petition a town to lay out a highway. The process requires an affidavit, notice and a public hearing. The town is not required to grant the request if it determines that laying out a highway is not in the public interest.
In many situations, however, neighboring property owners choose to negotiate a private access easement instead of pursuing the statutory process. A negotiated easement can often be tailored to the parties' needs and avoids creating a public road. Because easements create significant legal rights and obligations, they should be drafted by private legal counsel and recorded with the register of deeds.
Prescriptive easements
Even when no easement is recorded, a neighboring owner may claim access rights through a prescriptive easement. A prescriptive easement may arise when another person uses land without permission in a manner that is open, notorious, hostile, continuous and uninterrupted for at least 20 years.
Unlike adverse possession, a prescriptive easement does not transfer ownership of the property. Instead, it may establish a legal right to continue using the property for a particular purpose, such as driveway access. Whether a prescriptive easement exists is a fact-specific legal question that generally must be resolved through the courts.
Easements by necessity
Access rights may also arise through an easement by necessity. This type of easement may be implied when a common owner divides property in a manner that leaves one parcel without access to a public road. Whether an easement by necessity exists depends on the property's chain of title and the circumstances surrounding the conveyance.
What about older recorded easements?
A title commitment or other title record may reveal a recorded access easement that was created more than 40 years ago. In the past, questions sometimes surrounded whether older easements remained enforceable if they had not been re-recorded under Wisconsin's. Revisions to Wis. Stat. § 893.33 provide that recorded access easements generally are not extinguished solely because they are more than 40 years old or have not been re-recorded. As with any title issue, however, REALTORS® should avoid making legal conclusions about the validity or scope of an easement and instead encourage buyers to discuss any questions with the title company or private legal counsel.
Practice tips for REALTORS®
When a driveway appears to serve another parcel, REALTORS® should avoid assuming that the absence of a recorded easement means the neighboring owner has no legal right to use it.
Instead, REALTORS® should encourage buyers to:
Carefully review the title commitment and any title exceptions.
Ask questions about the history of the driveway and how the neighboring parcel has historically been accessed.
Discuss the situation with the title company.
Consult private legal counsel before purchasing the property or taking any action to block access after closing.
Recognize that access rights may exist even if they do not appear in the public record.
Likewise, REALTORS® should avoid advising buyers that they may install a fence, gate or other barrier that prevents a neighboring owner from using the driveway. Whether another property owner has legal access rights depends on the specific facts and applicable law.
The absence of a recorded easement should be viewed as a signal to investigate further rather than proof that a neighboring owner lacks legal access rights. Whether access exists depends on the property's history, the applicable law and the specific facts of the situation.
For more information, see the May 2022 Wisconsin Real Estate Magazine article, “Wisconsin’s New Easement Law.”
