(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
Obviously, the most easily established easement is a deeded easement. You have a deed that says you have a right to do something, and you can do that. Oftentimes the conflict comes when somebody says that you cannot. There is also easement by necessity, and a prescriptive easement. For a prescriptive easement, you must have a “use” that you were doing for twenty years. Oftentimes, we see this happen like this. Billy and John were neighbors, and John crossed Billy’s property to get to his own property which he has had for twenty years. Then Billy dies, and John goes to cross the property, and the new owner says, “No, you do not own this you do not own anything”. Then John has to file an action for a prescriptive easement to show that he was using it for all those years, and that he has the right to do so. That was actually one of my more complicated cases last year. It seemed to take a long time to finish, but we finally reached an agreement with mediation.
Society wants property to be used every now and again people will deed property that has no outside access. Therefore, creating a landlocked piece of property does society no good. Nobody can use it. It has no value to society if you cannot use it for farming, housing, or whatever the use. Society really frowns on that piece of property not being able to have access. They will have the elements for an easement by necessity, and one of the things we look at for that is the property that land locks said property, because every property comes off a larger piece of property. Oftentimes, the government granted sections, or quarter sections, and we look at the chain of title to see at what point the property became landlocked. So now we know where the access will be.
Essentially, what that says is that the bigger piece of property is meant to give access to the landlocked piece of property they just forgot. You will look at that, and be able to give them access. One element is that the landlocked parcel needs access. Another would be that Bill is the one that sold you this piece of property, and landlocked it, and now you are trying to get access through Jeff’s property which the law does not like. It likes to punish those that create their own burden, like Bill. The law does not want to burden others.
WHAT ROLE DOES AN ATTORNEY PLAY IN THE SALE OR PURCHASE OF PROPERTY?
I have a wide variety of roles in the sale or purchase of a property. For instance, the current business that I am selling, the seller who I represent, wants to know what deal the buyer has proposed. I am not inputting anything, I am just telling him these are the expectations, and this is what the contract states. This is the amount he will give you, this is what he expects, and then I will help the seller negotiate the deal, because it is not what the buyer, and the seller agreed on. We have another attorney for the buyer giving his interpretation on the deal.
The buyer’s attorney is adding a bunch of verbiage. I quoted this particular seller $200 to look at his particular contract, then I got a forty-page contract from the buyer, and I told my person, “I cannot look at this for $200. He said, “Go ahead and spend the time”, and asked if he needed a forty-page contract, and “I said we do not.” I can be involved in negotiations, which is one thing I, as an attorney, am very good at. Attorneys seem to have a unique perspective when it comes to negotiations. Sometimes you throw an easement in there, and it makes the property worth a little bit less, but maybe your buyer needs a little bit less, or maybe you need an easement.
The other thing that an attorney can do is look at zoning and due diligence work. Speaking with the city and see what zoning is possible, or what is not possible, and see if we can get zoning changed. Just looking at a title and making sure what they are representing and selling is what they are actually representing and selling. That is huge too. There are just so many things that an attorney can do. I am happy to do as minimal work as simply drafting deeds or documents to negotiating the whole deal and due diligence. It is a wide range of issues that I can handle for you.
For more information on Establishing Easements In Utah, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 375-5600today.