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Lender is Requiring an Easement

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  • 12-09-2009, 10:04 AM
    danielle1992
    Lender is Requiring an Easement
    I am refinancing. The bank is requiring an easement for my property. I sent them a copy of a survey I got from the county showing I live on a private road and that there is no easement. The bank will not accept this. I don't what else I can possibly provide. The county said it is a private road with no oweners and that it is ruled by "right of way" and there is no easement. Any ideas on what I can do?
  • 12-09-2009, 10:55 AM
    jk
    Re: New York: Need Help with Easement Issue
    well, the fact that it is a private road IS the problem.

    Somebody has to own the property. While you quite likely have a claim for a prescriptive easement, it may be easier to research who owns what you are using for access and seek a granted easement from them.


    If they will not provide such, you are pretty much stuck with suing them for an easement based on either a prescriptive easement claim or an easement of necessity. If you win such a suit, that can then be attached to the title of your property and the bank will be happy.

    The grant from the owner is going to be the fastest method.
  • 12-09-2009, 11:21 AM
    mudpie
    Re: New York: Need Help with Easement Issue
    I think what you will need in lieu of a signed agreement is an "easement by necessity," not a prescriptive easement. How long have you lived there and used the private road? Most states require 10 years of use if not more to establish adverse use. Most likely your neighbor "owns" the road. Approach them first with an agreement in hand ready to sign. The rush to the court house and record it.
  • 12-09-2009, 11:46 AM
    aaron
    Re: New York: Need Help with Easement Issue
    An easement by necessity requires more than simply a showing that your parcel is landlocked. It requires that your parcel is landlocked due to being split from a larger tract of land, and the easement would be over the other portion of the original tract.
  • 12-09-2009, 03:29 PM
    LandSurveyor
    Re: Lender is Requiring an Easement
    Quote:

    Somebody has to own the property.
    This is correct and is probably the key to the problem.

    I would ignore the county "survey"; it is probably just copied from a tax map and is useless for boundary purposes. I can understand a bank not having a comfort level with that. A "private right of way" is basically the same thing as a private easement. You need to figure out how it came to be considered as such.

    Who has maintained the road in the past?

    Do others use the road?

    What is your state?
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