Many properties have driveways providing direct legal access to the street or highway, but in Wisconsin there are many properties where access has been handled informally without a recorded easement. Having a recorded easement also may win only part of the battle. If there are no maintenance terms for snowplowing and repairs, there may be controversy between neighbors, and lenders may require written maintenance agreements for buyers.

Landlocked 

The buyer is looking at a hunting cabin and hunting land. The seller said there is no formal or recorded means of access. When buying or selling land, doesn’t the parcel legally have to have ingress and egress to the road?

There are many lots that do not have legal access to the public roads, and accordingly, are considered landlocked. These parcels may be sold, but the valuation of the property may be tricky if there is no legal access. 

A buyer considering the purchase of a landlocked parcel may draft the offer as contingent upon either obtaining a means of legal access. The owner of a landlocked parcel may try to purchase additional land to build a private driveway or secure private road easement rights. Generally the adjacent property owners are contacted in an attempt to negotiate an easement, which would be drafted by an attorney. Any easements should address issues such as the type of road to be installed, the type of driveway surface, the responsibility for expenses and maintenance fees, and any limitations concerning use of and access to the road.

If none of the adjacent property owners are willing to grant an easement, Wis. Stat. § 82.27, online at legis.wisconsin.gov/statutes/Stat0082.pdf, sets forth a procedure for owners of landlocked property to seek access from the town. This requires an application, an affidavit from the property owner, and a notice and public hearing. The town is not obligated, however, to provide access if it determines construction of a road is not in the public interest.

Frequently a private settlement can be more beneficial and less costly to property owners than the process under the statute. If the town lays a road, anyone will be able to travel that road. On the other hand, a private easement could limit traffic and access. Further, the town road is likely to involve more land than would be necessary for private access. The owner across whose land the town road will be placed will receive compensation from the town, although this may be less than what the landlocked property owner would have been willing to pay for private access.

The laying of a town road also means considerable expense because the town can recover the expenses of the hearing and its attorney (whether or not a road is ordered), as well as surveyor expenses and appraisal fees, road construction costs and the compensation to the property owner. The town is not required to perform any roadwork until the fees are paid. 

Read more in the article, “Landlocked Parcels: A Way Out?” in the June 2004 issue of Wisconsin Real Estate Magazine at www.wra.org/WREM/Jun04/LandlockedParcels. 

Scope of driveway easements

The recorded easement may only solve part of the problem. 

The recorded easement states that it is a “right of way for the purposes of ingress and egress.” The easement area is wooded, and potential buyers have asked if the easement can be cleared to allow vehicular access. Must the ability to clear the easement be clarified in writing, or is it assumed the easement can be cleared to give unobstructed access to the property?

Simply put, an easement is a right to use someone else’s land. An easement does not convey title to the land but instead conveys the right to use the land in a limited manner, frequently to provide access to a property. Easements generally remain in place when a property is sold, subdivided or developed. Most problems encountered with written easements concern the scope of the permitted use. The use of an easement generally must be in accordance with and confined to the terms and purposes stated in the written document. 

The terms and conditions of easements must be reviewed on a transaction-by-transaction basis and in light of the particular circumstances. Unless drafted with specificity, the scope of the easement may become contentious. If there is a question about the scope, generally an easement may be amended if all the interested property owners can agree. 

It is appropriate for the broker to refer the parties to legal counsel to evaluate the easement language and draft the terms of the offer to purchase accordingly to meet the buyer’s needs. 

For further discussion of easements, see the August 2000 Legal Update, “Express Easements,” at www.wra.org/LU0008.

Maintenance agreements

Many access easements fail to address issues such as repairs, improvements and maintenance. Generally, the owner of the easement is responsible for making those repairs that are necessary to permit reasonable use of the easement.

The broker listed a house on a private road. Four houses use the road, but there is no formal road maintenance agreement. One of the neighbors maintains and plows the road, and the neighbors chip in $100 per year. The buyer's lender is requiring a recorded road maintenance agreement from all the owners using this road unless there is something specific under Wisconsin or local law that says private roads do not need formal road maintenance agreements. Does Wisconsin have a statute about private roads, specifically about maintenance agreements?

There is nothing in the Wisconsin statutes that addresses this issue. At common law, when there are multiple parties to an easement, those parties generally share maintenance costs in proportion to their relative use of the easement. For example, when two parties use an ingress/egress easement over a third party’s driveway, or when two neighbors share a joint driveway, they would be expected to share equally in the costs of repairs and maintenance if each uses the driveway in roughly equal amounts. If one party makes excessive use of the easement or damages the easement, for example, by driving heavy construction equipment over a driveway, that party should be responsible for making the repairs.

Other formulas may be used when there are multiple users of a driveway easement whereby the owners pay the costs attributable to their respective use. When there is a dead-end driveway that serves five homes, and each successive home is further back from the road than the last, costs for the portion of the driveway between the road and the first house may be split five ways, the next portion between the first and second houses can be split four ways, and so on. Other formulas and breakdowns may be used as well.

It is best when the easement or a separate written agreement specifies the repair and maintenance responsibilities of the parties. The buyer should be referred to legal counsel.

Prescriptive easements

If the landlocked owner has been obtaining access over the years, it may be possible to claim a prescriptive easement.

The broker listed a property with two personal representatives; the home belonged to their mother. There is an accepted offer. The sellers recently told the broker that they remember a neighbor using one-third of the driveway to access hunting land adjoining the property as far back as 1970. While the neighbor has access to the property from two public roads, he has always used part of the sellers’ driveway as it was easier. A search and hold revealed no recorded easement.

The broker already told the sellers to seek an attorney. Does the broker disclose the neighbor’s use of the driveway to the buyer, or do the sellers explain to the neighbor that he can no longer use the driveway to access his hunting land? Does adverse possession come into play in this situation?

A prescriptive easement is an easement established by adverse possession. A prescriptive easement is created when a person uses land without permission 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, the neighbor would need to commence an action in circuit court and prove the elements listed in Wis. Stat. § 893.28. Once established, a prescriptive easement is permanent. 

However, the mere use of a way over unenclosed land is presumed to be permissive and not adverse. If it can be proven the use of the road was authorized by the mother, the elements necessary to create a prescriptive easement would appear to not be met. This would be a fact-based analysis. The broker may disclose the newly provided information as information suggesting the possibility of a material adverse fact. The parties may then investigate and address the situation with the assistance of legal counsel.

For information about disclosure of material adverse facts, see the October 2009 Legal Update, “Diligent Disclosure,” at www.wra.org/LU0910.

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.