You notice a landlocked parcel for sale, and you think “Gee, that’s a nice parcel at an amazing price”. But after reading the fine print you realize there’s no road to it and it doesn’t have an easement. The parcel is “landlocked”. “How will I ever get access” you wonder?
This is an important question, because access is needed to build. Here I describe the steps you can go through to obtain legal access.
This is an “Intro 101” examination of the basics, not an advanced discussion. My goal is to describe the process in a super simple manner to those buyers who have no idea how to get access to a parcel that is landlocked. If you have more advanced questions, you will want to consult a real estate attorney.
Key Things to Be Aware of First
- A “landlocked” parcel is one that does not have access to a road because it is surrounded by property owned by other people.
- The existence of a physical “road” that you can see with your eyeballs does not necessarily mean you have legal access.
- Your goal is to obtain an “easement for ingress and egress” (access to go in and out). Once you have an easement, you will have the right to cross your neighbor’s private property to get to your property.
- An easement is basically the right to use the real property of another for a specific purpose. Legal title to the underlying land is retained by the original owner.
- Easements “run with the land”. That means when you sell your property or your neighbor sells his property, the easement stays in place. Humans come and go. Land and easements stay where they are. So any future owner of your land would also have access via the easement and any future owner of your neighbor’s parcel would still have to provide access.
Step 1: Verify That the Parcel is Truly Landlocked
It does not make sense to go to the trouble of trying to create an easement if you already have access. So, the first step is to verify that the parcel in question is really truly landlocked.
If the land is on an official paved or dirt road, then you probably have legal access and you do not need an easement. If the land is on a road or path that is unofficial, then you may or may not need an easement. You cannot tell with your eyes whether the existing road is official or whether there is a legally recorded easement. The road you see with your eyes could be unofficial and not an easement.
To get some information about whether you have already access, order a title report. Title companies make decisions about whether or not to insure for “marketable access” when deciding whether or not to insure title. In my experience, “marketable access” correlates with what I will call “legal access” about 99% of the time. If the title company says that they will insure title and will also insure for access, you can be pretty sure you have legal access. If the title company says they will insure for title but will not insure for access, you can usually assume you have no legal access and your parcel is landlocked. So, the easiest way to determine whether or not a parcel is landlocked is to order a title report.
When the title company agrees to insure for title, but declines to insure for access, a phrase like “The lack of right of access to and from the land” will appear in the exceptions section of the title report. When this phrase does not appear, the title company is basically saying they will insure for both title and access.
Step 2: Gather Information on the History of Access
If the owner of a parcel for sale has already tried to get access from a neighbor, and failed, it’s important for you to know this. Maybe the seller has been feuding with his neighbor over access for years. This scenario would suggest that you, the buyer and future owner, are also likely to find the neighbor difficult to work with.
On the other hand, maybe the history offers good news. Suppose that the seller subdivided his 10 acres and sold 5 acres to his best friend from high school, kept the other 5 acres for himself, and just forgot to create an easement across his friend’s land in front to his land in back. That’s a totally different situation. Creating an easement in a case like this may be easy.
Understanding the history will help you, as a buyer, to get a sense of the likelihood that your efforts to negotiate an easement will be successful.
About 90% of the time you will discover that there is no history at all and the seller has never attempted to arrange an easement. This is because many people buy land as an investment, not to build. They have no reason to visit the land so never tried to create access. They bought it “as is” and they are selling it “as is”.
Ask about the seller’s history on trying to establish access. You never know when you might learn something helpful.
Step 3: Consider Who Will Create the Easement and When
Will the easement be created by the City? No. The County? No. The transportation authority? No. The Broker? No. The title company? No. The neighbor? No. The seller? Usually no.
So, who will create the easement? You, the buyer, that’s who. About 97% of the time, buyers of landlocked parcels must purchase the land the way it is, close escrow, own it, and then start working to create an easement after closing.
I find that about 2% of the time, the seller will entertain an offer with a contingency on the easement. This means that the buyer can try to arrange the easement during their contingency period (part of the escrow period). If the buyer is unsuccessful, the buyer can cancel escrow, get their deposit back, and walk away. If the buyer is successful, the buyer will close escrow. I say this happens 2% of the time because it is a rare seller who will entertain such a contingency. It can take months or a year or more to go through all the steps to create an easement and sellers typically want to close escrow in 21-45 days.
In unusual instances, like 1% of the time, the seller will actually agree to create the easement for the buyer prior to closing. Sellers may entertain this option when creating the easement is super-duper easy for them. An example of this situation is when the seller happens to own the adjacent parcel where the easement is needed. In that case, the seller of parcel A is also the neighbor and owner of parcel B, and can easily create an easement across parcel B, his own land. Another example is when the neighbor is a family member or close friend of the seller. A final example is when the seller has already negotiated access with the neighbor and just needs to put it in writing, get it signed, and record the easement with the county.
In my experience, buyers commonly want an easement before closing and sellers almost never agree to this. It’s just wishful thinking on the part of buyers. Generally, buyers will have to purchase the land and then roll up their sleeves, in that order.
Sometimes buyers who have not even submitted an offer on a parcel ask me for contact information for the neighbor. They think I can just give them the neighbor’s phone number or email and they will just contact the neighbor and say, “hey man, can I have an easement?” They’re hoping the neighbor will say “yeah, sure, no problem” and it will be easy. Dear buyers, that almost never works. First, I don’t have the neighbor’s phone number or email and the seller rarely has their contact information either. I do have access to title records but those show only the neighbor’s name and mailing address, not their phone number or email. Second, negotiating an easement takes more effort than a simple phone call. It can take months. So, a “hey man…” conversation is unlikely to be fruitful. Third, you don’t own the parcel yet and you’re not even in escrow, so you don’t really have authority to negotiate an easement. Fourth, generally more than one buyer will have this same idea and it’s not good for multiple buyers to be calling the same neighbor. So, buyers, I suggest that you put this idea out of your mind. Please understand that if you want to buy a landlocked parcel at a low price, in all likelihood you will have buy the land “as is” and work through the steps in this blog post to seek an easement after closing. Or don’t buy it. That’s the other option.
Step 4: Figure Out Where You Want the Easement
After buying the land, if you decide to move forward with seeking an easement from the neighbor(s), you will need to figure which parcel(s) you want to cross. Get a map that shows your parcel and the neighbor’s parcel(s). This map might be a plat map or an aerial map.
Say you are surrounded by neighbors B, C and D. If you cross B you will reach the road. Alternatively, if you cross C you must also cross D, then you will reach the road. In the first case, you will need one easement. In the second case you will need two easements. So, figure out which direction it makes the most sense to go.
Also assess approximately where on the neighbor’s parcel(s) you want the easement. For example, is there a well-worn dirt path that you will try to follow? Do you want to travel along the boundary of a property? Is your desired easement straight or curved? How wide will it be? Ask the City/County what width they require in order to grant a building permit as that will dictate the width of the easement you will try to arrange.
Step 5: Get Contact Information for the Neighbor(s)
In order to request an easement from a neighbor, you will need the neighbor’s name and contact information. Their mailing address might not be the same as their physical address.
Vacant land sellers rarely have contact information for their neighbors. Remember, they’re selling land, not a house, so they don’t live there. However, your Realtor can look up the neighbor’s contact information in title records. In order for your Realtor to help you, you must give her the address or Assessor’s Parcel Number (APN), for the neighbor’s parcel(s) that you want to cross.
You can use the official plat map (not a Google map) to figure out the APNs. For example, if you are purchasing APN 1234-567-89 then the plat map will have an 89 in a circle corresponding to the parcel you want to buy. If you are planning to seek an easement across a parcel that has a 90 in a circle, the APN for that parcel will be 1234-567-90. Give your Realtor that APN and she can look up the name and mailing address for the owner of that parcel. In California and some parts of Oregon, agents have access to title records in Realist through the MLS.
Another way to find the neighbor’s contact information is to use a Geographic Information System (GIS). GIS systems are available free online. To find a GIS system for your area, Google “GIS <city name>” if the parcel is in the City. Google “GIS <county name>” if the parcel is in the County. Enter the neighbor’s APN into the GIS and see if their contact information pops up. Note that not all GIS systems have contact information for property owners – some do, some don’t. Also, if there is contact information it will be limited to names and addresses. There will be no phone number or email.
I have had some success finding phone numbers and emails just by using Google. This works best if the neighbor has a somewhat unusual name. Try it.
Step 6: Ask the Neighbor(s) for an Easement
Armed with the neighbor’s contact information, the next step is to get in touch with them. You can send the neighbor a letter, call, email, or try going in person. Or, if you prefer, you can have your attorney do any of these things.
Explain to the neighbor that you are seeking an easement. Be prepared to explain to them what an easement is. Reassure the neighbor that they will still own the land where the easement is located. You just want to cross it. Let them know that the easement “runs with the land” so it remains there in perpetuity and does not disappear if you sell or if your neighbor sells. Describe where you want the easement to be located. State how wide it will be. Discuss who will improve and maintain the easement.
If the neighbor objects, offer to pay them for it. How much should you offer? It depends on the value of the land…$500, $5000, $50,000. I don’t know. It’s negotiable.
When considering what you are willing to pay for an easement, you might factor these things in to your thought process:
- An easement will greatly improve the value of your land. This is because parcels with recorded legal access sell for much more than parcels with no access. I would estimate that easements improve the value of land by 10-1000%. Ask your Realtor to estimate how much an easement might increase the value of your specific parcel.
- The alternative to paying the neighbor for the easement is probably going to court to resolve the conflict. Attorney fees are expensive, $200-$500/hour. In comparison to paying attorney fees, paying the neighbor for the easement might feel like a bargain.
- By burdening your neighbor’s parcel with an easement, you might be reducing the value of their parcel. It’s only fair to pay him enough to compensate him for any loss in value that he might incur.
If the neighbor agrees to offer an easement, go to step 7 and consider skipping step 8. If the neighbor doesn’t agree to offer an easement, go to step 8.
Step 7: Hire a Surveyor
Easements should be recorded with the county. In order to record an easement, you and the neighbor must sign an agreement. That agreement must specify the precise location of the easement.
The description of the location of the easement cannot be casual like “along the existing path on the west side of John’s land at 1234 Main St”. A proper legal description is often complicated and looks more like this:
An easement and right of way for road, sewer, water, gas, power and telephone lines and appurtenances thereto under, along and across a 60.00 foot strip of land lying within Section 10 and 11 all in Township 9 South, Range 2 West, San Bernardino Meridian, in the County of San Diego. State of California, according to United States Government Survey, the centerline of said 60.00 foot strip being described as follows: Beginning at the Northwest corner of the Northeast Quarter of said Section 11; thence along the Northerly line of said Northeast Quarter, South 86° 05’ 24” East 577.98 feet to the True Point of Beginning; leaving said Northerly line, South 5° 37’ 14” East 310.00 feet; thence South 04° 36’32’ East 164.03 feet to the beginning of a tangent 300.00 foot radius curve, concave Westerly; thence Southerly along the arc of said curve, through a central angle of 27° 07’ 51” a distance of 142.06 feet thence South 22° 31‘19” West 133.34 feet to the beginning of a tangent 100.00 foot radius curve, concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 60° 02’ 43” a distance of 104.80 feet thence South 82° 34’ 02” West 174.36 feet to the beginning of a tangent 400.00 foot radius curve concave Southerly; thence Westerly along the arc of said curve, through a central angle of 13° 33’ 30” a distance of 94.66 feet; thence South 69° 00’ 32” West 115.77 feet to an intersection with the Westerly line of the Northeast Quarter of Section 11, Township 9 South, Range 2 West, distant thereon South 05°54’22” East 926.55 feet from the Northwest corner of the Northeast Quarter of said Section 11; thence along the Westerly line of said Northeast Quarter, South 05° 54’ 22” East 397.68 feet to the Southeast corner of the Northeast Quarter of the Northwest Quarter of said Section 11 South 05° 22’ 54” East 13.10 feet; thence South 30° 35’ 51” West 281.12 feet to the beginning of a tangent 180.00 foot radius curve, concave Easterly; thence Southerly along the arc of said curve, through a central angle of 29° 17’ 17” a distance of 92.01 feet thence South 01° 18’ 34” West 264.21 feet; thence North 88°41’26” West 30.00 feet; thence South 13°19’28” West 66.15 feet of the beginning of a tangent 100.00 foot radius curve, concave Northwesterly; thence Southwesterly along the arc of said curve, through a central angle of 70°31’28” a distance of 123.09 feet; thence South 83°50’56” West 43.41 feet to the beginning of a tangent 200.00 foot radius curve, concave Northeasterly, thence Northwesterly along the arc of said curve, through a central angle of 47° 02’ 06” a distance of 164.18 feet thence North 49° 06’ 58” West 117.28 feet to the beginning of a tangent 50.00 foot radius curve, concave Southerly thence Westerly along the arc of said curve, through a central angle of 77° 08’ 23” a distance of 67.32 feet; thence South 53° 44’39” West 59.15 feet to the beginning of a tangent 150.00 foot radius curve, concave Southeasterly; thence Southwesterly along the arc of said curve, through a central angle of 28°58’14” a distance of 75.85 feet; thence South 24° 46’ 25” West 609.78 feet to an intersection with the Southerly line of the Northwest Quarter of said Section 11; thence along said Southerly line, North 87° 41‘ 25” West 61.94 feet to the Southeast corner of the Southwest Quarter of the Northwest Quarter of said Section 11; thence along the Southerly line of said Southwest Quarter of the Northwest Quarter, North 87° 41’ 25” West 193.45 feet to the beginning of a tangent 50.00 foot radius curve, concave Southeasterly, thence Southwesterly along the arc of said curve, through a central angle of 57° 08’ l0” a distance of 49.86 feet; thence South 35° 10’ 25” West 169.73 feet to the beginning of a tangent 100.00 foot radius curve, concave Northwesterly; thence Southwesterly along the arc of said curve, through a central angle of 36° 19’ 10” a distance of 98.30 feet thence North 88° 30’ 25” West 31.23 feet to the beginning of a tangent 150.00 foot radius curve, concave Northeasterly; thence Northwesterly along the arc of said curve, through a central angle of 42°51 ‘10” a distance of 112.19 feet; thence North 45° 39’ l5” West 138.04 feet to the beginning of a tangent 189.53 foot radius curve, concave Northeasterly; thence Northwesterly along the arc of said curve, through a central angle of 29° 27’ 20” a distance of 97.44 feet to an intersection with the Southerly line of the Southwest Quarter of the Northwest Quarter of said Section 11; thence North 16° 11‘ 55” West 482.67 feet to the beginning of a tangent 500.00 foot radius curve, concave Southwesterly; thence Northwesterly along the arc of said curve, through a central angle of 12° 50’ 50” a distance of 112.11 feet; thence North 29°02’45” West 376.18 feet to the beginning of a tangent 300.00 foot radius curve, concave Southwesterly; thence Northwesterly along the arc of said curve, through a central angle of 22° 07’ 00” a distance of 115.80 feet; thence North 51° 09’ 45” West 168.16 feet to an intersection with the Westerly line of said Section 11 distant thereon South 03° 25’ 35” East 194.19 feet from the Southwest corner of the Northwest Quarter of the Northwest Quarter of said Section 11; thence continuing along the last described course North 51° 09’ 45” West 122.20 feet; thence North 14° 09’ 45” West to an intersection with the Southerly line of the Northeast Quarter of the Northeast Quarter of Section 10, Township 9 South, Range 2 West.
As you can see, you will need to hire a surveyor to write a proper legal description of the location of the easement. The surveyor will also prepare documents for you and your neighbor to sign. After you sign, go to the county and record the easement.
Step 8: Hire an Attorney
If the neighbor refuses to allow an easement, hire an attorney. You might also consider hiring an attorney long before this stage to help you with steps 1-7.
Choose an attorney who specializes in real estate. To find one, Google the American Bar Association for the county where the land is located. Call and ask for a referral to a local real estate attorney.
Your attorney will be able to help you negotiate with the neighbor. They can also draft your agreement with the neighbor regarding things like who is responsible for the maintenance and improvement of the easement.
If the neighbor is uncooperative, your lawyer can advise you on whether the specific circumstances of your situation mean that you have a legal right to an easement. Then your attorney can make this case in court, if necessary.
You might be wondering if there are things you can do to address the lack of access without seeking an easement and without the expense of hiring an attorney. Here are some possibilities:
- Offer to buy the neighbor’s property outright. Once you own it you will have the control and can create an easement on your own land!
- Offer to buy a portion of the neighbor’s property, enough to get you to a road. This would require subdividing the parcel or a lot-line adjustment. Sometimes the city/county will allow this and sometimes they won’t. Before suggesting this to the neighbor, check with the Planning office to see if it’s allowed.
- Ask the neighbor’s family member to convince the neighbor to give you an easement. This has worked for me.
- If you’re not vibing with the neighbor for personality reasons, ask your spouse, significant other, family member, friend, or attorney to negotiate on your behalf. They may have better luck.
- Offer something of value to the neighbor. Examples include: a) more money than you originally offered, b) “first right of refusal” so that he can be first in line if you ever sell your land in the future, c) a gate/road that you will install at your expense, d) fencing between your properties that you will install at your expense, or e) that chain saw he keeps borrowing, etc. You get the idea. This is the “carrot” approach.
- Explain to the neighbor what your next steps will be if he declines the easement, e.g., you will hire an attorney so he will probably have to hire an attorney. This will cost him money and there will be a long drawn out court fight, etc. This is the “stick” approach and not recommended unless you’re ready to burn all other bridges.
- Offer to pay for a professional mediator to assist both parties in negotiating the easement.
- Offer to sell your property to the neighbor. This will not achieve your goal of getting an easement, but it will get you out of the situation.
- Wait for the neighbor to sell their property or pass their property on to their heirs. Statistically, houses turn over on average every 7 years. Maybe the next owner will be more accommodating.
- Wait for the neighbor to put their property on the market for sale. List your land at the same time, possibly with the same Realtor. If the buyer purchases both properties, they’re not going to be too concerned about your lack of access because they will own the neighboring land.
- Ask the neighbor for a “personal permission” to cross. This is different from an “easement”. It applies only to you personally (and possible your family, guests etc.) and does not “run with the land”. This means that when you transfer the property, or the neighbor transfers his property, the permission will disappear. It will not allow you to build and will not increase the value of your property when you sell it, but it will allow you to put your feet on your land for now.
- Sell your land on the open market in its current landlocked state for whatever price you can get for it. Be sure to disclose the lack of access to the next buyer.
- Try getting an easement in a different direction, across a different neighbor’s land, if possible.
Buyers purchase landlocked parcels every day. It is very common because parcels that lack access are offered at bargain price. By studying this basic outline of the steps that would have to be followed to create an easement, buyers who are unfamiliar with the process can assess whether or not buying a landlocked parcel is something that makes sense for them.