Land Sale Challenges: Access

By
Real Estate Broker/Owner with 406-270-3667, kat@thehousekat.com, Broker, eXp Realty RRE-BRO-LIC-75443

There are often challenges with selling or buying undeveloped acreage. Challenges can include lack of electric options, ground that would result in deep well depths, expensive driveway requirements, rocky ground which will make building difficult and more. The particular challenge being discussed in this post relates to access.

 

Specifically, there are two different types of access issues that could exist with a parcel of land, especially a larger parcel outside of town. One pertains to physical access, and one to legal access.   

 

Physical Access

The term physical access specifically refers to the actual road that is place and must be transversed to reach a specific parcel of land. In my area of Montana, there are many roads that are not maintained by the county. And while people in many other areas of the country might not even be able to imagine this, many of those roads also do not have any formal road maintenance agreement in place. Nor do there seem to be any specific requirements in terms of how wide or graded those roads should be. Land Sale Challenges: Access photo of side-by-side in woods

 

What this means is that many of the roads, especially those that go into more remote areas, may be in need of repair. They might have deep ruts from years of melting snow and strong rainstorms. Or they may be rarely used and full of grass. If it's wintertime, there might be a lot of unplowed snow, or sometimes even worse, icy roads that have been driven on many times. There might be potholes. In addition, there may be very sharp or steep areas that would make bringing in lumber trucks or concrete trucks very difficult if not impossible. 

 

Further, in many areas, there is nothing that requires any land or home owner to take care of the road. And quite frankly, many owners like a crappy road. It means less people will be driving by their land. So anyone considering buying property like this would need to understand "it is what it is" and they should expect the road to remain as it is. Or perhaps get worse with time.

 

This is important because sellers might have to price their property lower to reflect the difficulty new owners will have in accessing and utilizing the land. And buyers need to understand they will have to make accommodations for the road. Perhaps they will need a side-by-side or snowmobile to get up and down the road. Or maybe they'll need to hunker down in the winter. Maybe they'll need to spend some money in making road repairs themselves so that driving in and out is easier. Bottom line, access to some properties can be physically challenging.  

 

Legal Access

Land Sale Challenges: Access screen shot of title report re: accessBoth sellers and buyers of land also need to be aware of potential legal access issues. For example, during a recent title search we found out a specific piece of land that had been in a family for decades was basically landlocked, even though a road went right to it. In fact, on this one road, there were five parcels of land that each had access to the other four. But those five parcels did not have legal access to the seven parcels before their land, nor did they have legal access to property owned by Flathead National Forest. To make that road even more confusing, the four parcels even further up the road did not have legal access to any other parcels that needed to be passed through to get to their property. What?

 

This kind of situation is mostly found in rural areas outside of town. In another situation, people purchased a parcel of land three decades ago and have not been to the property since. When they purchased it, there was physical access through two different parcels of land. In the thirty years since then, those private owners, who never signed an easement, blocked off access to their property which blocked access to any other properties behind them. After thirty years, the land owners now want to sell their land but there isn't any way to get to it. Not legally and now, not physically. Yikes! Land Sale Challenges: Access relay that photo of piles of paper

 

There are resolutions to the access issue, but none of them are fast or simple. First is to ask the private owners if they would agree to sign an easement. This is the simplest, least expensive and quickest way to move forward.

 

But there are many land and home owners in this area who don't want to sign anything. They don't really care what the document is for, they just aren't interested. There are others who have been around forever and think they know the status of the road. In other words, they are sure it's a county road, not a private road, and therefore they shouldn't need to sign! And even if they receive proof that it is indeed a private road, they still object to the idea. Or a home owner might insist the road does not go through their property. And even if three different official maps are provided that indicate the road does indeed go through their property, they don't believe it. And then there are some who just say yes and some who just say no. 

 

So if home and land owners refuse to sign an easement, then a more official, costly, and legal route is necessary. In this case, an attorney would need to draft documents that will pursue an Easement of Necessity, Prescription or Implication, depending upon which is the correct route to take. All of this takes time, and in the case of the attorney route, money. So if possible, making sure a parcel has legal access should be done prior to putting the home on the market.  

 
Summary

Anyone who wants to sell property in Kalispell or anywhere in the Flathead Valley needs to investigate access issues as best they can prior to putting land on the market. If a title company determines there is no legal access after a purchase is in process, not only will the new owner not be able to get title insurance to cover any future access issues, but the buyer cannot use a land mortgage to purchase the property. And most buyers will not want to purchase land if they know they cannot build on it because there's no way a bank will give them a construction loan without legal access. To say nothing of the risk that a property owner could block off the road at some point in the future, and it would be totally legal. In terms of physical access, buyers just need to know what they are buying and plan accordingly.

 

If you want to talk to a Kalispell real estate broker who focuses on land, call Kat at 406-270-3667!  

 

Originally posted at thehousekat.com

Photo of files from Relaythat.

Posted by

Licensed Broker, CBR®

 

eXp Realty LLC

P.O. Box 10458

Kalispell, MT 59904

 

email: kat@thehousekat.com

www.thehousekat.com

 

406-270-3667 (MT)

 

facebook    Kat's Homes

 

 

Comments (52)

Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

Access issues happen often than you think a lot of the time unfortunately. Ain't the truth

Aug 01, 2021 09:02 PM
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

Wayne Martin I love you attitude and your positivity overall and I hope you have a wonderful day

Aug 01, 2021 09:03 PM
Endre Barath, Jr.
Berkshire Hathaway HomeServices - Beverly Hills, CA
Realtor - Los Angeles Home Sales 310.486.1002

Kat loved your post and indeed this is a huge issue, I just had to sadly cancel a purchase because the buyer and the seller did not disclose that there was no Access and the Preliminary Title Report they kept dragging on and sharing.... once they did... we asked for the Underlying Documents and to Plot the easements... and we got or answer sadly not favorable Endre

Aug 01, 2021 10:37 PM
Ed Silva
Mapleridge Realty, CT 203-206-0754 - Waterbury, CT
Central CT Real Estate Broker Serving all equally

With access issues as you describe, a seller should pay for title search before placing the land on market

Aug 02, 2021 05:07 AM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Thank you for the inclusion in your weekly post, Kathy Streib !

 

Dorie Dillard Austin TX - Thank you so much for your comment!

 

They seem to happy fairly frequently here, Laura Cerrano ! Enjoy your day!

Aug 02, 2021 05:18 AM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Ugh, Endre Barath, Jr. - that must have been frustrating!

 

Good idea, Ed Silva !

Aug 02, 2021 05:20 AM
Carol Williams
Although I'm retired, I love sharing my knowledge and learning from other real estate industry professionals. - Wenatchee, WA
Retired Agent / Broker / Property Manager

Hi Kat,
It definitely takes someone that understands undeveloped land issues to properly represent their clients, whether they are buyers or sellers. The Kalispell area is lucky to have you!

Aug 02, 2021 11:55 AM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Thank you for your kind words, Carol Williams !

Aug 02, 2021 12:27 PM
Buzz Mackintosh
Mackintosh REALTORS - Frederick, MD
“Experience, reliable, leadership”

Kat Palmiott at first glance I though you were hosting the August Challenge :} Great topic, I have sold many challenging plots of land. Had an old wood lot, 10 acre parcel land locked on a mountain I sold to a hunter years ago and a couple of Islands on the Potomac River. One had an interesting title issue that was a live & learn lesson for my Seller. 

Aug 02, 2021 05:30 PM
Fred Griffin Florida Real Estate
Fred Griffin Real Estate - Tallahassee, FL
Licensed Florida Real Estate Broker

Hi, Kat.

 

  We recently bought 15 acres in the Blue Ridge Mountains.  There was no easement of record; there is a rough unpaved road crossing a neighbor's property.  That road serves our property and one other.  Behind us is 10,000 acres of State Forest, and the highest mountain in South Carolina.  There is no other way into our property.

 

The owner of that neighboring parcel refused to sign an easement.  It got worse. The Seller's attorney was new and not experienced; he quickly offended that owner.  He (the owner) said that he would not sign anything unless we, the Buyer, agreed to a Deed Restriction on OUR PROPERTY that we would never sub-divide it.

 

Nope, not happening. 

 

I found an experienced real estate attorney who has argued Easement cases before the State Supreme Court.  He traced that easement back to 1964, determined that two parcels had been continually using it for 30 years+, that there was no other access to the subject property.  He then calmly explained to the offended neighbor that we had a right to drive on that road, it was in his best interest not to block the road, put up a gate, etc.   The neighbor verbally said "Okay", but still refused to sign anything.

 

The lawyer told us that getting a written easement would require taking the guy to court.  He said that we can use that road without any signed easement of record.  If neighbor blocks the road, call the Sheriff, call the attorney.

 

Fast forward 7 months.  We are at peace with the neighbor and his wife.  We just spent $17K paving the rough road.  The only request by the neighbor, "Please put up some Private Property / No Trespassing signs to keep out hunters, sightseers, people trying to get to your waterfall, etc."    We put up the signs.

 

If the need ever arises to get it in writing, we (per the attorney) have an open and shut case for prescriptive easement.

Aug 02, 2021 08:01 PM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Buzz Mackintosh  - That certainly was a live & learn lesson! Interesting what happens in this crazy world of real estate!

 

Fred Griffin Florida Real Estate - Wow. First of all, the property sounds amazing - your own waterfall? Access to 10,000 acres of forest? Wow, amazing. 

 

As to your issue with the road, I'm glad it all worked out and at the moment all is well! Hopefully when he (or his family) sells at some point in the future, the road will remain as is. Thank you for sharing.

Aug 03, 2021 05:48 AM
Steffy Hristova
HomeSmart Elite Group Tempe AZ Tel: 480-966-9353 - Tempe, AZ
Tempe AZ Realtor - Your Home Close to Your Work!

Kat, excellent points to think about when buying or selling land. Great discussion and comments, too. 

Aug 03, 2021 08:42 AM
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
"It's Wendy... It's Sold!"

Kat Palmiotti This is a fantastic textbook to clearly layout the challenges of land access in Montana, and probably elsewhere.  Strangely, in my part of Florida on the Gulf coast, we see issues with roads not being publicly maintained. Landlocked - less so.

Aug 03, 2021 11:45 AM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Thank you Steffy Hristova - I always think the comments are the best part!

 

Wendy Rulnick - Thank you! Are the roads not maintained because they are owned privately?

Aug 03, 2021 01:40 PM
Wendy Rulnick

Kat Palmiotti Interestingly enough, I am about to list a property that is on a road that is in an "unrecorded subdivision" with the portion of the road with the listing not maintained by the county. Walton County Florida tells me that this road is not considered "private", but is just not maintained by the county for whatever reason.  The unpaved portion belongs to the heirs of the original developer, but any judge would understand that the intent was to allow access to the lot owners, per the county.  They also tell me that private roads that are owned or dedicated to a homeowners association are maintained by that entity.

Aug 04, 2021 11:26 AM
Kat Palmiotti

Wendy Rulnick - That's interesting. People used to just build roads and shake hands about who could use it. At least that's what I think happened!

Aug 08, 2021 05:03 AM
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

Looking at all these responses, I must say that you guys have a bit more experience than I do regarding the specifics of land sales

Aug 03, 2021 09:33 PM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Laura Cerrano - That's because feng shui experts don't typically sell land!

Aug 04, 2021 05:32 AM
Erik Hiss
Keller Williams Capital Partners Realty - Worthington, OH
You can trust me for all your real estate needs!

Very good info, thanks for sharing!

Aug 04, 2021 08:55 AM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Thank you Erik Hiss !

Aug 08, 2021 05:02 AM
Paul S. Henderson, REALTOR®, CRS
Fathom Realty Washington LLC - Tacoma, WA
South Puget Sound Washington Agent/Broker!

My family once inherited 40 acres of land just outside of Bend Oregon. The problem was there was no access and it was covered with old growth trees. Since my dad and mom we're not aware that the had inherited the property the state and county government wanted 15 years of of delinquent taxes. To get to said property we were to get permission from several corporations to cross their land and the nearest road was 5 miles away. That would be a nightmare if I was their broker today 🙁 Kat Palmiotti 

Aug 23, 2021 12:35 PM
Kat Palmiotti
406-270-3667, kat@thehousekat.com, Broker, eXp Realty - Kalispell, MT
Helping your Montana dreams take root

Wow, Paul S. Henderson, REALTOR®, CRS - were they ever able to 1) access it, and 2) sell it? How did they find out they now owned it? That would have been quite a challenge!

Aug 23, 2021 01:03 PM