Buying Property That is Subject to a Deeded Right of Way

My question involves real estate located in the State of: Maine
I am about to purchase a small piece (.57 acres) of shoreline property that has never been built on. Neighbor across the street has "...right of way by foot or vehicle by route to be determined by the grantees as access to the beach with the right to use said beach for all purposes" My lawyer says this wording is dangerously vague. Neighbor is essentially holding me hostage since he has not "officially determined" the location, although he has been mowing a particular path across the land for at least 10, possibly more years. Neighbor does not want me to buy since my house would alter his view. Does anyone know exactly how much power neighbor actually has? Since he has mowed a path for a period of time, is it safe to assume that this location is where he has determined his access will be? Can he lay out a ROW in a space specifically designed to keep me from being able to build a house? Thanks all

The language is specific in that the neighbor (grantee) can determine the location of the ROW. That in my opinion is not vague. And with the right to use the beach for all purposes, you are looking at a whole lot of uncertainty.

I don't think that his mowing a path for any number of years determines the location of the ROW. He could change his mind at any time.

I think he could prevent you from building if he chooses to place his granted ROW where you can't meet the zoning requirements.

This is a property that I would not buy unless you can come to written terms with the neighbor before a closing. Perhaps money will make him more agreeable. But if there is no meeting of the minds, I wouldn't touch it with the preverbal ten foot pole. Unless you want to take the risk of a court battle to adjudicate the matter after you own the property.

Thanks for your response. Perhaps I am not understanding what exactly a right of way is. As I look up the legal definition, I see it as a right to cross a piece of property to get to a particular destination. Does that right HAVE to be a specific path in a specific location, if it is not specified? If the whole lot was mowed lawn, could I simply say "cross anywhere" and let that be that? The problem with coming to written terms is that he wants way too much in return. Does it seem like my next step would be to have him nail down a location where he would like to cross, and then see if that works with my building plans?

When a right-of-way is granted, the granting usually has a description of where that ROW is by a survey or a metes and bounds description or something like "the old sander road" but something that says where it is located. The grantor (the serviant tenant) then knows where the ROW is and can use his property as he sees fit as long as it doesn't impede the dominant tenant's right to the easement.

In your case, there is no location of the ROW. And I can only assume that the grantor never intended the property to be developed unless the grantor and grantee came to some agreement.

It will be a crap shoot. What does your attorney say other than it is vague language?

I don't really know if this hinders your development of the property. Perhaps if the neighbor has access to the beach for foot and vehicular after you develop the property, then all will be ok provide you leave access to the beach. But since the granting says that it will be determined by the grantee, you may have a problem.

Lawyer says that I need to have a conversation with neighbor and nail down a location. I don't necessarily disagree with him, but I am hesitant to contact this guy since he is making it clear that no deal will be good enough for him because he doesn't want me to build in his view. This all seems so unreasonable of the law for a non owner to have this much power. The kicker is that it was all originally a family parcel, and neighbor was given everything (land, easement) for free. If I can nail him down to the current location as being his preferred location, I think I can make it work.

Then you should walk away from the sale.

It is not unreasonable that the law grants non-possessory rights to use someone's land. That is long founded in common and statutory law. This easement was crafted it seems to keep the land in the family.

How did you come by purchasing this property if I may ask?

One more question - If I request it, does he have to declare a permanent location, or can he decline and wait for me to place a foundation and then tell me that he declared and my foundation is in the way? Surely a judge would see through that?

The property is in the exact location I want. It is listed for sale with a realtor, but when I expressed interest and arrived at the lot, the neighbor came down and explained the deed situation. It doesn't appear that the seller was even aware of the neighbor's rights.

I can't answer that. I am not in the mind of the judge that might hear this case. Your attorney said that you need an agreement. If you choose to ignore his advise you risk the peril of what the outcome may be and at great expense to you. You should listen to your attorney.

I will assume that this property is a real bargain. Why? Because it is encumbered by a ROW that is in flux and it will take lots of money to work out the rights of the to be serviant tenement. That would be you if you purchase.

ok, thank you for your help

Quote:

---

Quoting downeaster

---

One more question - It doesn't appear that the seller was even aware of the neighbor's rights.

---

Maybe yes and maybe no. Perhaps the seller is fully aware of the problem.

But stayed tuned. There are many knowledge people on this forum that may have differing opinions from mine.