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Thread: Access easements, road maintenance agreements, and my problems

  1. #1

    Access easements, road maintenance agreements, and my problems

    I am a (new) transportation planner in a small county that is experiencing rapid growth due to development pressures making their way up and over the mountains from a neighboring metropolitan county.

    Our mountainous terrain has led to some interesting development patterns and a large network of private roads. These roads run over private access easements, forest service roads, and logging roads. These roads must be built and certified to our standards before any building permits are issued, so road quality is not an issue.

    The issue is access easements. The number of people calling in and asking about their neighbors right to the easement has increased so much in the past few weeks that the fact that something needs to be done about the problem is being realized.

    In the past, my county was divided into thousands of lots through an exempt segregation process that did not allow review by any county departments. As these lots begin to be divided again, we are finding the issues of the past (poor recording of easements) causing huge problems in the present. Property owners who own the land under the access easements are calling in to complain about their neighbor who is short platting and intending to use the easement.

    Our road standards have a general requirement that a recorded access easement from the easement owner be submitted prior to final plat or short plat approval. A recorded road maintenance agreement is not, however.

    I have done extensive research on access easements, and although I know a lot more than I did before I started, I still can't answer our questions, nor do I understand the intent of most easements I am looking at.

    I'd like to know how other jurisdictions handle these problems before trying to come up with a solution (besides not allowing private roads!).

    My questions are these:

    1. For those of you who work for jurisdictions that allow private roads, how do you review access easements? In my research I have found nothing about easement review.

    2. Do you consider easements to be self-enforcing? Meaning, if my notified neighbor doesn't complain, all is good.

    3. If an access easement is for Lot A, successors, ensigns, etc, and Lot A is subdivided into Lot 1A and 2A, is the original easement still valid? Overburdened easements and the scope of the easement are issues that come up with this example.

    4. Do you require road maintenance agreements prior to final approval? My county hasn't enforced this in the past because they say it would cause a lot of tension between neighbors, and some private roads have hundreds of lots on them.

    5. When do you send the public off to take care of the problem on their own? This is a civil matter, but I want to be sure that when I tell someone that this is a civil matter and will have to be taken care of between property owners, I am giving the correct answer.

    6. If you find that the original easement description is poor (eg. the only description being "60' driveway easement" and an arrow and a dotted line), what do you do? Require a new easement with a better description?

    Thank you in advance for any help!

  2. #2
    Cyburbian Coragus's avatar
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    I can answer a few of these questions, I think.

    2. Do you consider easements to be self-enforcing? Meaning, if my notified neighbor doesn't complain, all is good.

    Well, if someone is coming in for either a new home or site plan review, you should be able to find out where all easements are, and they should be noted on the deed to the property, right? Make sure that there aren't any structures or infrastructure in the easement during review.

    3. If an access easement is for Lot A, successors, ensigns, etc, and Lot A is subdivided into Lot 1A and 2A, is the original easement still valid? Overburdened easements and the scope of the easement are issues that come up with this example.

    Yes, easements go with the land and should stay in place after a lot split.

    4. Do you require road maintenance agreements prior to final approval? My county hasn't enforced this in the past because they say it would cause a lot of tension between neighbors, and some private roads have hundreds of lots on them.

    Your municipality has a choice. Either get a maintenance agreement up front or plan on creating a special assessment district in the future. Most municipalities around here that allow private roads in the first place mandate a maintenance agreement.
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