On 24 Sep 2005, [email protected] said/asked in substance:
. . . if the affected parties decline to settle . . .In Missouri, Joe owns adjoining properties A and B the latter of which is landlocked and accessible only to/from parcel A. Joe sells parcel B to Mike by a contract that in BOLD type states that that parcel is being sold AS/IS and that the deed to be delivered shall not contain any warranties but which does not mention that parcel B is landlocked. Mike didn't do his due diligence and didn't know parcel B was landlocked. Joe recognizes that MO statute § 228.342 makes available a procedure by which . . .
One thought is that Joe and Mike should each attempt harder than you. . . a court may direct the widening of an existing road or the estasblishment of a new road for ingress/egress if provably necessary to enable the locked-in real property to be used as permitted by otherwise applicable law, acknowledges that the statutory "strict necessity" test is met in this instance, but wonders whether he will not be entitled to any compensation because he created the landlocked property or whether Mike will be required to pay for the the easement at a fair market price. Any thoughts?
appear to imply they so far have to reach a compromise and, failing
that, should not stop reading at § 228.342, as you appear to have
done, and ought instead also carefully read and think about the next
following sections in the cited chapter (especially §§ 228.345,
228.352, 228.358, and 228.368).
Another thought is that Joe also should be clearer than above in
realistically assessing whether, if contested litigation eventuates
and in light of what those other sections provide as they have been
interpreted/applied in numerous MO. cases, a court probably will (or
won't) agree that Mike's lack of knowledge of parcel B's land-locked
status is attributable entirely to his lack of due diligence, as Joe
apparently would claim, compared with whether (perhaps in part
implemented by the "as/is" contractual disclaimer and by other
communications between the parties you haven't yet made explicit in
your posting/query?) Joe deceptively misled Mike about the nature of
parcel B if Mike makes a claim to that effect.
Further thought: Reading all the above cited provisions together will
confirm to each of Joe and Mike that the MO. statutory scheme in this
connection is (implicitly yet quite clearly) designed to encourage
compromise/settlement, including by way of a deliberate legislative
decision to authorize the statutorily prescribed "disinterested"
persons in the first instance to assess the dollar value of "damages"
to defendant caused by the easement rather than by using the term you
do ("fair market price") and by providing a fair but also potentially
expensive way for each of the affected parties to try to convince a
court (subject to the outcome of further potential if also perhaps
expensive appeal) that whatever if any "damage" caused by the
resulting easement of necessity is/isn't the sum such persons
recommend (and so, IOW, it is at least theoretically conceiveable
that, if the court accepts what appears to be Joe's version of the
facts as stated above, it might accept a "fair market value" formula
assuming that Joe is willing and able to expend the resources needed
to establish what that sum ought be in a way more effectively than
Mike's reasonably anticipated countervailing presentation).
IOW, in sum, queries of the sort above, of which many variations are
often posted to law-related newsgroups, are, also like the one above,
often perversely amusing, or at least bemusing, because, as the above
poster apparently does, the questioners so frequently overlook the
probable costs/expenses to themselves of litigating their claims if
the parties don't compromise/settle.