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Thread: Easement by necessity - who pays for the easement?

  1. #1
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    Default Easement by necessity - who pays for the easement?

    On 24 Sep 2005, chad@chadphillips.org said/asked in substance:
    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 . . .
    . . . if the affected parties decline to settle . . .
    . . . 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?
    One thought is that Joe and Mike should each attempt harder than you
    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.


  2. #2
    Senior Member
    Join Date
    Jun 2004
    Posts
    1,067

    Default Easement by necessity - who pays for the easement?

    An easement is a right to pass. It doesn't require a road. If the easement
    holder wants to create a road or widen it, that's permissible, but the
    underlying landowner isn't required to contribute. So if you are asking who
    pays for the road, the answer is "nobody." If you are asking whether the
    easement by necessity is free or must be paid for by the holder of the
    easement, the answer is, it's free (remember, the easement is a right to
    pass, not a road.) The question you didn't ask is whether the buyer might
    have a cause of action for damages against the seller. The term "as-is"
    seems to me to be insufficient if there is any obligation to disclose the
    landlocked condition. I think an obligation to disclose arises from the
    obligation (a) not to lie, (b) not to mislead, and (c) to correct any
    misleading information given by the seller to the buyer. I'm assuming that
    the seller showed the land to the buyer, or at least told the buyer how to
    get there. That showing involved crossing the seller's other land, and
    included the implied assertion that "This is the way to get to the land."
    That false implication should have been corrected. I would bet on the buyer
    winning a lawsuit for damages, amounting to the difference in value between
    the land as represented and the land as purchased.

    I didn't read nospam's response, apparently concerning statutory provisions.
    That answer may provide a statutory determination of the issue, which would
    take precedence over the above common-law answer. I suggest you read it.

    McGyver

    <nospam@isp.com> wrote in message
    news:547jj1pdaajgobogl8detkcuo3ik2fvf35@4ax.com...
    On 24 Sep 2005, chad@chadphillips.org said/asked in substance:
    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 . . .
    . . . if the affected parties decline to settle . . .
    . . . 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?
    One thought is that Joe and Mike should each attempt harder than you 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.


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