Question: Recently, we looked at 120 acres in Montgomery County. The property is at the end of a private road. The road goes through a neighbor's land. When I asked the broker if the roadway was a recorded easement, he said no, but that the road had been there for several years; therefore, no one could keep us from using it. Is he right?

Answer: Don't count on it!! The broker assumes that since this road has been used for several years, that the owners of the 120 acres have a legal right to use it. In theory the broker may be right, but you may have to go to court to prove it!! Should the neighbor of this land decide to lock the roadway, then the 120-acre landowner will have to either negotiate a financial agreement with the neighbor or seek resolution in a court of law. In either case, acquiring a legal easement could be very expensive.

Another point. Most title insurance companies will not insure the right of access if there is no recorded easement. Furthermore, lenders will not loan money on the property if there is no recorded easement.

Tell the broker that you want a contingency in your contract that will require the seller to obtain an easement before you close. Your attorney should either write the contingency and/or approve the contract before you sign. Above all, the easement must be in form acceptable to your attorney and the tile company before you close the sale!

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