Many of us have faced this, seen it action, or heard stories about it; neighboring property owners accessing a different part of their property through a gate. Not uncommon. I mean, it's nice and convenient. It allows the homeowner to park a boat, travel trailer, remove debris, and/or access a portion of property that otherwise maybe very difficult.
One question that should concern any homeowner is: Does that neighboring parcel have easement rights?
In the example above, the neighboring parcel owner appears to be installing a gate to provide access. So far so good. However, the road providing access is private and the following questions and conversation ensued.
- Does the neighboring parcel have rights to use a private road?
- Was there anything filed and recorded on title granting the neighboring parcel access rights?
- Does the road maintenance agreement cover damages caused by unauthorized use?
- What rights does the private road owner have?
In this case, the homeowner, with the private road, has no knowledge of a recorded easement or anything granting another's right to use the road.
- Should the neighbor be allowed to use their wonderful new gate?
- If so, what type of easement would that be?
- Would the ease have an Reversion clause?
- Would a road maintenance agreement be put in place to cover damages?
What would you do? I recommend:
- Talk to the neighbor about the intended use of the gate, how often it will be used, are they will to pay for damages caused from use, and what type of vehicles/equipment will be using the access.
- Conducting thorough title search to learn if there has been any recorded easements or documentation granting rights.
- Record a formal document, if an easement is granted, that details the intended easement use.
There are local title companies, First American Title, Chicago Title, Fidelity, and Old Republic, that can help answer additional questions and assist in easement formation or termination.
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