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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I am selling my land and home, we have always been told there

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I am selling my land and home, we have always been told there is legal easement, it is in my tital and abstract. the new tital company that is putting together the tital for my buyers say that although it states legal easement into my property, the discription of the easement is not right. This is the only driveway to this land dating back to 1957 and stated in the abstract. this may be a deal blower for the underwriter, but this has always been our only driveway, and has never been issue. we have lived there for 21 years, and always maintained the drive. Every other owner has done the same. please advise.

Thank you for your question. I will do my best to assist you with your concerns. If you would like me to clarify my answer, I will be happy to do so.

I am sorry to hear that you are having difficulty. This is not a 'deal breaker', at least not completely. The reason is even if the easement description is incorrect, there are two separate laws that would still uphold this easement as a valid interest on the property. First, there is policy in every state that finds an easement for any property that is otherwise considered to be 'land-locked'. In other words if this driveway is the only way to and from the land, this would be considered an 'easement by necessity' and would be upheld as valid.

Second, since you have been using this easement for 21 years, and it dates back to 1957, even if wrong, it has become a 'prescriptive easement', which is essentially an easement obtained via adverse use and possession of the property. In either case the right to use the land remains, the next step may to get a quiet title action in place to update the records, but that may take a significant time, which is why explaining that easements on the property still remain is likely the better option.

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Customer: replied 5 years ago.
this is Wisconsin, the financial man for the buyer said a letter of opinion from a lawyer that we have a easement would help to close, for the tital company. This is not land locked, but the only drive to my land, building another drive would be massive.
Thank you for your follow-up, Lynette.

Wisconsin has both prescriptive easements and easements by necessity available as fall-back positions. The other possible option is to have the other person simply re-sign a new easement with you that would fit the description correctly, as that would possibly satisfy the potential buyer. In terms of not being 'land-locked', if the expense of building another road is prohibitive, the courts would consider the property land-locked and still consider the current driveway as an 'easement by necessity'.

Good luck.
Customer: replied 5 years ago.
it is not an option to ask for a easement, it probably would not be granted. Is the only option the courts or because it states easement in the abstract, but just the wrong description, couldnt this be settled easier.
I am sorry Lynette but if the abstract and the title are different, it becomes an issue for the courts to settle and figure out what the correct description may be if the neighbors are unable or unwilling to re-sign the documentation. It becomes a fact issue that the courts have to evaluate. That may take months, I am afraid.

It can be settled easier if the buyer chooses to accept the property with this potential defect, but that is no guarantee because this type of a defect will grant the buyer the right to cancel closing as this is a blemish on title. I wish I had better news for you, truly, but within 20 hours of closing you would not be able to settle this unless you get the buyer to agree to take the property as it is currently titled.

Good luck.
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