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If you own a piece of property in Oregon that is land ...

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If you own a piece...
If you own a piece of property in Oregon that is land locked and the owner beside you refuses to grant access or easement, are there any options available to the landlocked owner?
Submitted: 9 years ago.Category: Real Estate Law
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Answered in 40 minutes by:
3/24/2008
Real Estate Lawyer: Kara K., Lawyer replied 9 years ago
Kara K.
Kara K., Lawyer
Category: Real Estate Law
Satisfied Customers: 185
Experience: 14 years experience as a real estate attorney - licensed in 3 states
Verified

Dear A Wade,

Thank you for contacting Just Answers with your important question.

Under general real estate law, a land-locked parcel may be able to obtain a prescriptive easement in certain situations. Unfortunately, this is something only the courts can grant, and it could be a time consuming and costly procedure. I found an Oregon case which quotes from the general statement of law, so it appears that Oregon follows this general law. (of course, an Oregon attorney would be able to give you specific legal advice).

Generally, a land-locked parcel may be able to obtain an implied easement over another parcel - it depends on many factors. If the landlocked parcel was originally part of a larger parcel which has access to a public way, and the seller of the land-locked parcel is the owner of the other parcel, then the courts might find there to be an implied easement.

"The factors that are important in determining whether an implied easement exists are found in 5 Restatement of Property § 476:

"(a) whether the claimant is the conveyor or the conveyee,

"(b) the terms of the conveyance,

"(c) the consideration given for it,

"(d) whether the claim is made against a simultaneous conveyee,

"(e) the extent of necessity of the easement to the claimant,

"(f) whether reciprocal benefits result to the conveyor and the conveyee,

"(g) the manner in which the land was used prior to its conveyance, and

"(h) the extent to which the manner of prior use was or might have been known to the parties." Thompson v. Schuh, 286 Or 201, 212, 593 P2d 1138 (1979)."

(Cited from Tyksa v. Prest, 1998)

In addition, apparently Oregon provides for a "Way of Necessity" in its statutes. Here is another quote from the same case:

"Oregon law provides for the creation of a statutory way of necessity "to provide motor vehicle access from a public road to land that would otherwise have no motor vehicle access[.]" ORS 376.150(2)(a). ORS 376.180 enumerates the conditions that must exist before a way of necessity can be established. That statute provides in pertinent part:

"A way of necessity established under ORS 376.150 to 376.200 shall:

"* * * * *

"(8) Not be established if the property for which the way of necessity is sought has an existing enforceable access to a public road;

"(9) Not be established if the petitioner for the way of necessity could acquire an easement for access to a public road through other legal action[.]"

Click Here for a link to the actual statute

I suggest you contact an Oregon real estate attorney to discuss this matter - you may be able to obtain an implied easement or a Way of Necessity. Good Luck!

Kara K.
Kara K., Lawyer
Category: Real Estate Law
Satisfied Customers: 185
Experience: 14 years experience as a real estate attorney - licensed in 3 states
Verified
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