Special offer

RIGHT-OF-WAYS AND PRIVATE ROAD MAINTENANCE AGREEMENTS

By
Real Estate Agent with Reliant Realty in Nashville, TN TN License# 00232013

RIGHT-OF-WAYS AND PRIVATE ROAD MAINTENANCE AGREEMENTS

 

Home owners, planning to sell their homes often get busy with deferred maintenance around the house: repairing a leaky faucet, replacing broken doors & hardware, patching holes in the drywall, fixing drawers in the kitchen or bathroom cabinets, cleaning and painting.  They get out and spruce up  the yard because they remember someone talking about curb appeal.  All of this is important and worth time and effort.

 

How many have given thought to RIGHT-OF-WAYS AND PRIVATE ROAD MAINTENANCE AGREEMENTS.

Many know little, if anything about RIGHT-OF-WAYS AND PRIVATE ROAD MAINTENANCE AGREEMENTS. A Right-of-Way is an agreed permission from the property owner to a party needing permission to pass over the owners' property in order to access their own property.  A property that is not bordered along some portion of its boundaries, is referred to as being "Land Locked."  Such an owner has no legal access from a public road onto his or her property.  They will have difficulty securing a building permit, clear title to sell, and numerous other problems.

Often, a land owner may have a legal access that is difficult to access, inconvenient, or it may pose safety concerns; so they seek permission to enter and exit across a portion of a neighbor's property.  When families remained on their parents' farms and built their home on that farm, too often they did not hire a surveyor nor attorney to legally grant them ownership and right-of-way (using mom and dad's driveway for ingress and egress).  When the generations change, and some children attempt to sell and move on, they run into this problem of Right-of-Ways,

 

Right-of-Way issues require (1) cooperation (2) agreement of terms , and (3)a maintenance agreement between the parties,  Purchasing a Right-of-Way may or may not include the sale of land.  A Right-of-Way with Right To Pass Over is not the same as buying a strip of land from the public road to their property line at a width that conforms to Codes.  

 

My dad thought he was buying a strip of land 700 feet long by 50 feet wide.  His neighbor was selling a right to pass over.  The misunderstanding wound up before a judge.  My dad paid property purchase price for a right to pass over.  That is an expensive road.  After my dad's passing, my son and wife purchased that property.  Another neighbor had learned of dad's mistake, and bought the land.  He and dad had a gentleman's agreement about road maintenance.  I encouraged my son and the other neighbors to hire an attorney to reduce tht agreement to writing.  That agreement makes good neighbors.  Learn from Dad's mistake.  The cost of an attorney to draft an agreement is substanially less than the cost of litigation.  

 

[An aside:  In my youth, I witness my Dad granting a neighbor a right to pass over with a simple condition:  Closed gated were to remain closed other than the immediate pass thru time; and care was to be taken to not damage Dad's property.  Hand shake agreement.  A couple of years later the man's sons began leaving our barn gate open, allowing expensive Holstien milk cows to wander out into the road.  When asked to close the gate, the guy's sons ignored the request.  My brother used a log chain and pad lock to stop their use.   Their dad came over making threats and wanting to fight my Dad.  Dad worked it out without violence.  I believe that is why he was so trusting of the land owner first mentioned.  Ronald Reagan said, "Trust, but verify." and that remains good advice.]

 

Posted by

Fred Cope, Reliant Realty, Nashville, TN -- (615) 587-3500 -- http://www.LookingForHomes.org --30 years experience in real estate and finance

Bob Crane
Woodland Management Service / Woodland Real Estate, KW Diversified - Stevens Point, WI
Forestland Experts! 715-204-9671

Fred, I like your Dad's conditional use agreement, it did allow much more freedom to enforce good neighborly behavior.

We see a lot of these handshake agreements that later become law with the passage of time and adverse possession.

However it is always best to consult a good attny before securing or granting access on a long term basis.

Apr 01, 2015 04:34 PM
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

I've met several owners who, with a shared driveway, believe that they are protected by adverse posssession. 

HA!  They have lived in the home for a couple of years.  I don't believe they have and standing.  So the neighbor leaves the kid's bike in the shared driveway.  Just move the bike and drive on.

Be kind to your neighbor. 

Apr 01, 2015 11:05 PM
Fred Cope
Reliant Realty in Nashville, TN - Nashville, TN
Looking For Homes With A Smile

Hello Bob.  Thanks for your kind comment.

Dad was a simple man.  He grew up during the depression with a loving mother and "a mean dad" [my mother's words].  Dad was the eldest of four children, and from an early age he worked hard, lived honestly and simply.  His mother was a hard working woman, and made time to take the children to church.  Dad went off to war as a boy, with his mother's signature.  After the war, dad returned to high school, and I attended his graduation.  Dad stressed education to us boys.  He stressed honesty, hard work and fair play as well.  When he believed he had been wronged, he said so, but I never saw him carry a grudge.  When he lost his lawsuit (mentioned in the blog) he never mentioned it to me until after the fact: too late for me to help him.  I never heard a vindictive word from his lips; but it did not surprise me because I never heard one toward the farmer and his sons.  I never knew dad to lie, curse or take advantage of someone.  Those are big shoes to fill.  He was always there for my brothers and I, aunts & uncles, cousins, and anyone else he knew had a need.

Bob, I think Dad has more sway on me than any written code of ethics because I saw those ethics wearing shoes.  I have tried to pass that on to my children and grandchildren.  A piece of paper was not what directed my dad: it was a deep faith in God and a belief in right and wrong.

Apr 04, 2015 03:35 AM
Fred Cope
Reliant Realty in Nashville, TN - Nashville, TN
Looking For Homes With A Smile

Lenn, thank you for being there for all of us.  I always read your posts with a learning mind, and I agree with your assessment of getting along with neighbors.  When my son returned after being away working on his PhD, I gave him my equity in my parents home, and he bought the place from Mother (retiring the debt on that property and her current residence.  He and his wife have worked hard on upgrading the property.  As a boy, my son spent many hours helping Dad build that house, and so he already knew the neighbors and the lay of the land.  He is a cross between his two granddads.  My dad was driven to get a job done, while my daddy in law worked with a belief that "don't force things, just keep it steady: we will get it done."  Both men were WWII vets, Christian deacons, and respected in their communities.  Both loved having my son around them, and he learned at their feet.  He has my hair style.  Without doubt, he is the most trustworthy man I know.  When his name comes up in conversation, so does my chin.  As a bonus, I can say the same things about my daughter-in-law, son-in-laws and daughters.  Further, all of us men in the family know and appreciate the special women who love and abide us, and that included my wife and my grandmothers, and mothers.  I truly would wish that blessing on the current generations of all races and colors.

Apr 04, 2015 03:58 AM
Margaret Rome Baltimore 410-530-2400
HomeRome Realty 410-530-2400 - Pikesville, MD
Sell Your Home With Margaret Rome

A shared driveway agreement can be so simple and so smooth. A shared driveway can be a just the opposite. Kindness and courtesy along with a legal document will make it work.

Apr 22, 2015 01:53 PM
Fred Cope
Reliant Realty in Nashville, TN - Nashville, TN
Looking For Homes With A Smile

Margaret Rome, hello.  I worked with an old school broker for years,  and his most frequent comment was,"No he said, she said.  Reduce everything to writing.". I always stress that the quickest way to lose a friend is to ASSUME you agree, and that nothing will go wrong where money and love are involved.  My dad was a man of his word, and wanted to believe everyone is.  They are not.  Lawyers exist for two reasons: (1) to make sure agreements are specific and accurate, and (2) be the butt of our jokes.

 

Apr 23, 2015 12:34 AM
Lou Ludwig
Ludwig & Associates - Boca Raton, FL
Designations Earned CRB, CRS, CIPS, GRI, SRES, TRC

Fred

Your post is very informative on right of ways, private road maintenance Agreements.

Good luck and success.

Lou Ludwig

May 18, 2015 12:33 PM
Fred Cope
Reliant Realty in Nashville, TN - Nashville, TN
Looking For Homes With A Smile

Lou, thank you.  As an MLO, I ran into a number of doozy misundrstandings and assumptions.

 

Had one deal where access was across L & N Railroad property ,(tracks).  No right-of-way had ever been granted, and they refused to provide one in writing.  The deal fell through, and lawyers went to work.  Time moved on and I lost track of the issue.  I would like to learn the outcome (if I can remember the Listing agent's name).  I do know that the RR had no intentions to deny access.  I'm not a lawyer, but I believe there is a statute that grants a public right-of-way after a period of time, so perhaps the RR could not deny access.  Wish I could recall who the listing agent was -- it has been more than ten years since my involvement.  This will bug me all day.

May 18, 2015 09:41 PM
Bob "RealMan" Timm
Ward County Notary Services - Minot, ND
Owner of Ward Co Notary Services retired RE Broker

Great post and great story Fred Cope . As a Realtor I learned about right of ways first hand when a developer wanted to build a fourplex but a utility right of way killed the deal even though the actual power lines would have been about 40' from the structure.

Jun 24, 2015 02:07 AM
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

I live in a rural area.  These matters are critical to home buyers.  Selling a home on a road that is not state maintained and no private maintenance agreement with neighbors can lead to rute, holes in the road and eventually. . . . . . .

Aug 03, 2015 01:50 AM