Landlocked Property Question

Started by mgramann, January 06, 2012, 02:44:09 PM

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mgramann

I am debating purchasing some property in the Michigan U.P. and am wondering about access to property via Forest Service Road.  Some of the parcels I am interested in are land locked, or have no other access with the exception of FS roads.  I realize that these roads will not be maintained, and access during the winter months could be a challenge, but do I need to worry about losing all access to my property?  In other words, can the forest service close a road which would be the only access to my property, or is there some kind of permanent easement that exists to protect me?

I might be over analyzing, but I would rather have all my ducks in a row.  Any experience in this regard would be appreciated!

Squirl

I would worry about the same thing.  That would fall under the laws of your state or even locality, which I am not familiar with.  Does the land actually touch the forest service road?  If not, I would be very worried.

I would normally include this in the category of a question for your property lawyer and the get the answer in writing.  This way you have someone to sue with malpractice insurance if he is wrong.  There might even be a way to work this into the property description/title for title insurance if it touches the land, but I'm not very familiar with that aspect of the law.

With all that I would make a guess that the forest service can physically close roads across their land, whether legal or not.  You would have to litigate in court  against your state, which has bottomless pockets for litigation, just to regain access.


mgramann

I've read some things about permits being issued to gain access, and also that if you can show a history of access, you are grandfathered in as well.  While the odds of something like this occurring aren't that great-I still worry.

MountainDon

If there is a road that presently connects to the property, make certain it is a legal road. Make certain that the forest service acknowledges it is a legal road. Also make certain that if it passes through other privately held land that there is a legal easement recorded with the county. No verbal promises from sales people or anybody else for that matter. See it on a plat before you believe it.

Our national forests are crisscrossed with thousands of miles of roads that do not officially exist. As long as it is a legal road there is no problem. No problem other than the FS may not maintain it very often or very well, they will not plow it in winter. If there are gates that the FS can lock they have to give the property owner(s) a key.

We have property as you have described. Because it is a legal road the FS can not close the road. Across the country the FS has already closed thousands of miles of roads and trails. This is an ongoing process in our area. The spur road that gives us and five other land owners access will be kept open even though the FS would very likely close it if there was no privately owned lands there. In our area all the roads that lead to private property are recorded with the county. Easements etc all show up in the land records.

Just because something has been done and has not failed, doesn't mean it is good design.

mgramann

Thanks Don.  I will keep all of that in mind.  I notice that in the listings, they are quite obvious with the term "legal access" -which is my first clue.


Redoverfarm

My cabin is similar to others here that it is situated off of a FS road.  The road actually passes through private land as well but it is a legal road with a FS Route # recorded.  This is my only access to my property as well as others adjacent to it.  They do moderately maintain the road but offer no snow removal in the winter months.  It is not gated.  They do however have a right of essement on both sides of the road when it passes through private property.  This is normal from what I have heard for future expansion or repairs.  So there may be 20-40' along the road which you own or pay takes on that you can't develope.  I hadn't really checked into this at this point as it is not a concern for me at this time.  Maybe at some subsequent time it may become a concern.

MountainDon

Speaking of access.... There are a couple of lengths of FS roads in the Jemez that, way back when, the FS lawyers messed up. The FS road passes through private property and somehow or another the FS never got a legal easement. As a result the private land owners could stop access to everyone. One did. After hours of lawyers time the mess was cleaned up. This even happened with the major north-south FS road we use. Maybe 'bout average for gov'mint work.

Just because something has been done and has not failed, doesn't mean it is good design.

UK4X4

"No verbal promises from sales people or anybody else for that matter. See it on a plat before you believe it"

I had verbal - aerial photos- a map showing the road and still no access

Buyer beware ! The blocking person in my case just went bankrupt and sold his property at auction

just waiting now to see if the new owner will allow access !

otherwise its a helicopter build....... 8)

and a very expencive pile of pretty trees

waggin

There is no national standard, so each state typically has their own distinct laws.  Some of the concepts will be similar, but the actual requirements won't necessarily.  Here are a couple of links with some well-explained definitions and requirements for Washington State that I came up with during a few minutes of search engine exploration.  From my experience in talking to people, if you have a legally platted lot, there is a way to get legal access (theoretically.)  It might cost you more than the lot is worth by the time you get it, however. 

http://www.moeland.com/adverse.htm

http://www.suchmanlandlaw.com/content/articles/LandlockedArticle.htm

If there are existing roads that have been used by many people for many years, I'm guessing that access could be made legal by "easement implied by prior use" or a "prescriptive easement."

If it's a truly landlocked parcel with no access at all, then most jurisdictions (WA State) will have provisions for establishing "common law way of necessity" or "condemnation of a private way of necessity."

From what I've seen, lots without established legal access sit on the market at "dirt cheap" (pun intended) prices forever, as the legal costs likely outweigh the discounted price.

Even with legal access, there are still maintenance issues as well as the possibility of road closure.  What if a forest service road/bridge is destroyed in a catastrophic flood?  You may have legal access, but there's no guarantee of a road or bridge being there.  State/county/city government can also do the darndest things if for some reason they have a motive for trying to force you off your land.  Creating an access issue is one potential way they can and do use, even if you have legal access.  Sure, you're in the right, but they have time and money on their side.  I have seen a case of this. 

Using title insurance when purchasing the property is useful, because if you use the proper policy, the insurer is insuring access to the property, but one must make sure that the access is suitable for intended use.  Of course, going forward I see some major issues with title insurer solvency in general, but that's an entirely different topic and discussion.

Disclaimer: Not a lawyer; don't play one on TV; etc, etc.
If the women don't find you handsome, they should at least find you handy. (Red Green)


MountainDon

#9
QuoteOf course, going forward I see some major issues with title insurer solvency in general, but that's an entirely different topic and discussion.

I split this off by itself -- MD
Over Here ------>
Just because something has been done and has not failed, doesn't mean it is good design.

suburbancowboy

I know here in utah they have closed 80 percent of the FS roads with rocks or gates.  It is a $5000 fine if you are caught driving on one of these roads.

rick91351

Quote from: suburbancowboy on January 11, 2012, 12:16:08 PM
I know here in utah they have closed 80 percent of the FS roads with rocks or gates.  It is a $5000 fine if you are caught driving on one of these roads.

I am trying to get them to close one that has an easement through us.  I am having trouble with people stealing trees.  Then they leave the gate open and our cows trespass on to the the FS.  Or when cattle are in that allotment trespass on us.  Further someone went in this year with a self loader and knocked down three nice saw logs, loaded and were out  before alone caught them.  Clearly marked Private Property and No Trespassing.  They refuse to budge on it.  They say it is too valuable for recreation.  I feel they want me to trade for another property.  There are no other private properties on that road but ours.  As with all things with the FS, it never makes sense.  When you want them to they won't and you don't and they do.       
Proverbs 24:3-5 Through wisdom is an house builded; an by understanding it is established.  4 And by knowledge shall the chambers be filled with all precious and pleasant riches.  5 A wise man is strong; yea, a man of knowledge increaseth strength.

MountainDon

Quote from: rick91351 on January 11, 2012, 01:12:59 PM
As with  all things with the FS, it never makes sense.  When you want them to they won't and you don't and they do.     

Ain't that the truth.

Just because something has been done and has not failed, doesn't mean it is good design.

mgramann

#13
The piece of property I am looking at is on a Federal Forest Highway, so I am fairly confident the road "exists" on the books.  The issue is that along this road, the National Forest owns a narrow strip of land between most properties the private acreage and the road, which I suspect is for expansion purposes.  It seems a permit from the national forest allows access and driveways, though I am getting more details.

Edit:Apparently it is $90/yr for access.  The adjoining 20 has a driveway, so I would be granted use of the part that is on USFS land, and a trail from that to my property.  This wording makes it sounds like it is quite a hike from access, but it really isn't.  Maybe 100ft at best.

I will use this "hassle" to my advantage should I make an offer on this property.