There are parcels located in Wisconsin that do not have access
to a public road. These parcels are commonly known as landlocked
parcels, which, as the name implies, cannot be accessed without
crossing private property owned by another. Landlocked parcels are
not illegal. They can be bought and sold just like any other real
property. From a transactional perspective, the only additional
requirement is a disclosure duty on behalf of the seller and real
estate licensee informing potential buyers of the
restriction.
Landlocked owners do not have an absolute legal right to public
access. They do, however, have the statutory right to petition the
government for access provided the landlocked owner has first
attempted to purchase access rights through private
negotiations.
The private negotiation process may result in the purchasing of
additional land and the building of a private driveway. It is also
possible the landlocked owner could purchase private road easement
rights. This would permit the landlocked owner to build and
maintain a private road on the neighbor's property. Private road
easements should be drafted by an attorney and recorded with the
register of deeds. The easement should address issues such as the
type of road to be installed, the allocation of expense and
maintenance fees, and the limitations, if any, concerning use and
access of the road.
In some instances access rights could be established by
prescriptive easement, also known as, easement by adverse
possession. A prescriptive easement is created when a person uses
land without permission (such as road access) in a manner that is
hostile, visible, and open in a continuous and uninterrupted way
for a period of at least 20 years. In order to establish and
enforce prescriptive easement rights, a landlocked owner would need
to commence an action in circuit court. A claim of prescriptive
easement is generally restricted to privately owned land. Except in
limited circumstances, adverse possession claims are not permitted
against government-owned land.
If a landlocked owner cannot obtain access rights through
private initiative, the landlocked owner can petition the
government pursuant to Wis. Stat. §80.13. This statute
provides a procedure whereby the landlocked owner may seek town
approval to build a public road to the landlocked property. The
property owner starts this process by filing an affidavit with the
township. The affidavit must state that the property is landlocked
and that the owner is unable to purchase or acquire access rights
from an owner of the adjoining real estate or that the purchase
price to gain access is at an exorbitant price.
Upon receipt of the affidavit, the township is required to hold
a public hearing on the request within 30 days. The town must
publish a class two notice informing the public as to the time and
date of the hearing, along with personally serving the notice on
the property owner. The decision to build a public road to the
landlocked parcel is at the total discretion of the town. If the
town board feels that a road is not in the public interest, they
may deny the request of the property owner and the property owner
remains landlocked.
If the request is approved, the town board shall assess the
damages to the owners of the real estate to be acquired by the town
and pay just compensation. The landlocked property owner will be
assessed an "advantage" assessment to pay for the road construction
and cost of acquisition. Advantages are deemed to occur because it
is assumed the property is more valuable with road access. In
addition to the advantage assessment, the landlocked property owner
is also responsible for the town's attorney fees, survey costs and
valuation expert fees. The costs and fees will be assessed to the
landlocked owner regardless of whether the town approves or
disapproves the road construction.
From a practical standpoint it is usually more economical and
beneficial to the landlocked owner to obtain access right through
private negotiations. If the town creates a public road, anyone can
travel upon it. On the other hand, a driveway or private road
easement can limit access and control the traffic. Furthermore, the
acquisition cost, public road construction and related fees and
costs are usually far more expensive than the cost to purchase the
land privately. If, however, the landlocked owner cannot obtain
access rights through private negotiations, the statutory remedy is
available.