By John Frederick "Fred" Kempf, Jr.
Suppose you acquire a tract of real estate, but fail to realize until after you have bought it that the only way to go between your new property and the nearest public roadway is to go across your new neighbor’s land. Then you find the new neighbor does not want you to go across his land. Your land does not adjoin any other public roadway. Now, you find you are LANDLOCKED! What can be done?
Good news. Oklahoma’s real estate laws strongly disfavor the notion that any Oklahoma land should be landlocked. Instead, the idea is that an owner should have some means to travel between his land and the nearby public roadway. In short, an owner needs some type of an easement, or a right to go onto the property of another for the limited purpose of gaining access between his property and a nearby public roadway. This is a non-exclusive right that means even if you have an easement, this does not allow you to interfere with the right of the adjoining owner to use his own property. Unless a new owner’s land comes with an easement, he may have to pay the adjoining owner a reasonable amount to acquire the privilege of having and using such an easement.
One can obtain an easement in a variety of ways. The best way is to simply be sure that when we buy the property, we have or obtain a valid written easement agreement from an adjoining property owner whereby we and any subsequent owners of our property have an easement to allow us access to travel back and forth between our property and the public roadway. Such an easement should be recorded and preserved in the public land records. Under this arrangement, both parties need to agree on the location of the easement, and if it is a new easement, a price to be paid to the grantor of the easement by the grantee of the easement, since that grantee is getting a legal right to use the grantor’s land for that purpose. This will also enable both sides to agree on the correct location of that easement. It can also address such matters as how wide the easement will be, and who will be responsible for any repairs or damages that may arise by the use of same over time. A neighboring owner can also grant or consent to a temporary easement, but that can be terminated by the neighboring owner.
If we do not have a written easement agreement for such purposes, a next question is whether there is an “easement by prescription”, which as a matter of law gives us the right to continue a pre-existing use of an existing roadway across a neighbor’s property IF we can show there has been a consistent use for that purpose for the statutory period for adverse possession. The courts have ruled that in order to show such an easement right exists, the new landowner would need to be able to show that he and the previous owners of the subject property have used a roadway across the neighbor’s property for such access purposes “with the actual or implied knowledge of the landowner, adversely under claim or color of right [e.g. without his permission], and not merely by the owner’s permission”. They would also have to prove this use has existed for a continuous period of fifteen years or longer, without objection or refusal from the neighboring owner. If opposed by the neighboring owner, the landlocked owner would need to file a lawsuit seeking a decree from a court of law to establish whether or not such an easement exists.
Another concept sometimes encountered in such situations is an “easement by necessity”. A landlocked owner needs some way to travel between his property and a public roadway, but he has no such right, and no owner is willing to grant him such a right. Absent an agreement with the adjoining owner, the landlocked owner would need to bring a legal proceeding to obtain that easement. In that case, the landlocked owner must prove that his property is landlocked AND that by the circumstances of both tracts, the adjoining owner’s land is the only land over which the landlocked owner could be granted an easement by necessity. Whose land should be burdened by such an easement? The law states that if the adjoining owner sold us the landlocked tract, the easement should be granted across that adjoining owner’s land. If both tracts were previously owned by the same owner, then the easement would still be allowed over the adjoining owner’s tract. To show there is a true “necessity”, the landlocked owner would need to prove: a) unity of title (meaning at some point before now, the landlocked tract and the adjoining tract were both owned by the same owner); b) a prior conveyance of the landlocked tract which was part of the prior “unity of title” tract; and, c) a resulting necessity for access to the landlocked property at the time of its severance from the larger unity of title tract. It should be noted that this would be a true easement by “necessity”, e.g., the owner really needs access across the neighbor’s land, and has no other way to access a public roadway. If, for example, a party says his property is landlocked and seeks an easement across his neighbor’s land, but the landlocked tract backs up to a public roadway where access to the public roadway is possible, then there is no such “necessity”, and the law says the landlocked owner has another means of access to a public roadway. The mere fact that a different route across someone else’s land might be more convenient for the landlocked owner does not mean that is the only place the easement can be imposed.
We hope when you buy your next property, you end up with a good means to travel between your new land and a nearby public roadway. If you should end up with issues as to easements or the access to your land, and you feel you need an attorney to assist you, that is one of the services I and my firm provide. If we can assist, I can be reached at (405) 235-8783, or by email at email@example.com.
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Posted on Mon, March 12, 2018
by Andrews Davis