A reader in a neighboring county recently bought a house. The house has a detached garage that was included in the sale but is not located on the lot where the house stands and cannot be reached directly from it.
Thereby hangs a problem. The problem lies not with land, but with landowners.
Before the sale was completed, the seller assured the buyer that she had accessed her garage by crossing a short section of a neighbor’s property – with the neighbors’ permission – and then driving her car out by way of an alley that runs behind properties in the area.
After settlement on the property, the buyer sought to cross the neighboring property to reach the garage. She was accosted by the neighbors, who refused to allow her to cross their property.
As a practical matter, the new owner can gain access to her car by walking along the public street until she reaches a cross street that leads to the alley, then walking back along the alley in the direction she came to reach her garage, a less convenient option. But as a legal matter, do the neighbors have the right to bar her from crossing their land as the previous owner did?
The first place to look is the deed of sale for the property. If the deed mentions a right-of-way to access the garage, the buyer has a strong argument for a court order allowing her to cross the neighbors’ yard to reach her garage. Generally, an easement that goes with the property is noted in the deed.
If the deed is silent on access to the garage from the buyer’s property, she can contact the seller to learn whether an access easement may have been established by usage. An access easement is what it sounds like, in this case a right to travel across the neighbors’ property to reach the garage. Establishing access by usage generally requires evidence that the previous owner or owners crossed the property to reach the garage for more than 20 years.
The previous owner’s action in crossing the neighbors’ land to reach the garage may have established a right-of-way that prohibits neighbors from closing access to the new owner. Or it may allow the neighbors to withdraw the permission for anyone other than the previous owner.
A right-of-way is not legally required to be established by formal contract. If there is no reference in the deed or other written permission to cross the neighboring property, the right may be established by usage.
If the home buyer sought to establish a usage right-of-way, she would want the previous homeowner to testify that she used the neighbor’s property to reach her garage for more than 20 years. The situation does not seem to be an easement by necessity, an easement created when it is essential for reasonable use of a property.
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Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at firstname.lastname@example.org.