Access To Property Needs To Be On Record
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 638
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A reader has purchased property that
is only reached by an inaccessible county road. The seller gave them temporary
access through his property until the road is repaired. Now the neighbor is
selling his property and will not give them an easement. Sam and Ilyce encourage
the owner to quickly get a document on file stating their right to access their
Q: My husband and I bought 100 acres of land last year. Our seller sold us
a portion of his land. Prior to closing on the purchase, the real estate agent
advised us that access to our land was through an old county road that had never
(article continues below useful
This "old road" had not been used in quite some time. It had mature
trees and brush on it preventing any type of vehicle from using it. We were
assured that the county was going to reopen this county road that summer. Until
then, we had permission to use the seller's farm field to access our property.
Our contract was contingent on the county road being reopened and the seller
giving us permission to access our property through his until the county road
Well, the county has yet to re-open the road. We told our real estate agent
that we would like to forget the county road and get an easement through the
seller's property. The seller is reluctant to give us a recorded easement because
he feels it will affect the property value of his land which is currently for
Since the easement is not recorded, but is listed in our contract as our means
of ingress and egress until the county opens the road, will it transfer over
to the new owners of the or seller’s property should he sell before the
county opens the road?
A: If I were you, I would run to my attorney’s office and make sure that
there is some document placed on record to give you access to your home. Any
potential buyer of your seller’s property must be placed on notice that
you have a continuing right to use his land until the county road is opened.
You don’t want to be in a situation where you new neighbor knows nothing
of the arrangement and you have to fight to have access to your land.
There are some legal principles that might give you the continued right to
have access to your property, but the risk of having a fight with your new neighbor
once the land is sold are too great. You need to make sure that you have the
right of access.
There is one thing you should have done before closing: You should have required
the seller to give you a written easement giving you the right to access your
property until the county road was open and available for your use. You would
have had more leverage than you have now.
If the seller refuses to give you the easement now, you will need to discuss
your options with your attorney. He may advise you to sue the seller for the
easement, record a document along with a copy of your contract to evidence the
right of access given to you by the seller.
You need to act fast before the property is sold and the new owner claims he
knows nothing of the arrangement, is not bound by it, fences his property, and
prevents you from accessing your property.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com