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jonpalombi
join:2011-07-15
Morrisville, VT

jonpalombi

Member

Do nonspecified right-of-ways confer right of ownership?

We live in Morristown, Vermont. We have neighbors who are land-locked behind our property and visit their second home for two months every summer. In their deed, there is a non-specified right-of-way to access their property. We have no problem with this.

Their under-aged children, however, use the access road for a racetrack for their ATVs. This causes quite a bit of noise, hours at a time, and due to their reckless driving.... this creates a concern for these kids and their own safety. We have repeatedly asked the parents of these three children to honor our rights as owners of the land and they claim it is a "civil issue" and there are no parameters, due to the fact that the right-of-way is nonspecified.

They further claim (or should I say boast?) that they own the land "free and clear", yet, pay no property taxes, nor have the right to sell the property independently of our consent. Correct???

So they state that they essentially owns the land, as well, and can do anything they wish upon it. He and his wife are attorneys in the State of Florida and feel that, as laypersons, we are without any rights unless we take them to court and let a judge decide the issue of ownership.

The Vermont State All Terrain Vehicle Operator Manual's specification about the ATV right of usage, clearly states that only upon property OWNED by those operating the ATVs, is it legal to do so. Thus, driving them on land NOT privately owned by the operator of the ATV, is "illegal without written permission of the owners of the land upon which the right-of-way exists".

The local police, Trafficking Commission and Department of Motor Vehicles refuse to get involved in any way, as they insist it is a "civil issue in which we have no jurisdiction". Who defines this issue of ownership and right of usage?

No one in the local or State government can help me clarify this definition about private right-of-ways granting ownership rights or not. Is this purely a Civil issue, subject to speculation or wide-open interpretation? Must a judge decide this parameter in a court of law or can we find any documentation which clearly states... what is what?

Basically, we don't want a law suit on our hands, we do want some specification in regards to if a right-of-way confers actual ownership of the land it crosses. Sadly, due to the poor economy in Vermont, I am unemployed and court costs are out of the question for us. We are not wealthy and being without employment makes it a troubling situation. Can anyone shed some light upon this wrinkle?

Or is there some precedent by which we can define what is ownership of this land, without a court date, about what is legally defined, as to what the unspecified right-of-way implies. Can anyone please help us with this issue? Thank you in advance, for any kindness offered.

Frankly, we are feeling quite small and helpless against such a nebulous circumstance and nobody will get involved. Please offer us any pertinent suggestions, legal presidents previously defined in a court of law or some reasonable courses of action for us to take. It would be very much appreciated, Folks.

Sincerely, Jon Palombi

Jack_in_VA
Premium Member
join:2007-11-26
North, VA

Jack_in_VA

Premium Member

I think the only way to resolve it is for a judge to decide. I can't imagine anyone granting "unspecified" access across their land. IMO the easement should have specified the location and terms of use filed as part of the deed and restrictions.

Spork35
join:2011-07-13
Methuen, MA

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The term you want to use here is 'easement'. If you don't ask the right question they don't have any idea how to answer. Given that the local city/state should know how to handle it.

You should be able to search online for an easement document. They are typically created by the original owners of the property. The new owners may never know about the original easement document but it's still in force regardless.

You might want to talk to the city about getting an 'Implied Easement' document if you can't find the original easement document.
Spork35

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A Google search of "ATV easement use" will provide you with some interesting results.

"ATV Trespass on Easement

The dominant tenement of an ingress egress easement cannot invite "guests" over to ride up and down the easement continuously as a form of recreation or entertainment. If the easement is for ingress egress visitors are allowed of course but a visit would be seen as driving once over the easement for a visit, having a visit, and regressing over the easement to a different public or private way. There is a test of reasonableness here and one of the questions would be the frequency of "visits". Would driving up and down the easement fifty times in an hour be allowed? Are fifty "visits" an hour by one "guest" reasonable or an overburden of the easement?

Riding part of the way across an easement, but not going all of the way to the benefited property, or to an egress point, and turning around, could not be seen as an ingress or egress use. It would be an overburden.

You will need witnesses/video evidence of acts of overburdening for review by a court, as jk suggests, as that is your remedy."
Bobcat79
Premium Member
join:2001-02-04

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It seems to me that you own the land (all of it), but they must be allowed to cross your land to access their property. Just because you have provided an access road on your property doesn't give them ownership of your land, nor the right to operate unregistered motor vehicles. This, of course, is a liability problem for you. Just wait until someone gets hurt on the access road and watch them claim that it's your land and you gave them permission to operate their ATVs! I'd be more worried about this than the noise.

But I'm not a lawyer.

Go to the Country Clerk(?) and see what you can find about the two properties and any easements. If they have access, there must be something documented with the deeds.

Also, get a surveyor to mark the boundaries of your property and the easement (if any). Then call the cops the next time the kids are using the ATVs on your land.

Ultimately, you may have to get a lawyer and go before a judge to get a ruling that it is your property and they cannot operate their unregistered motor vehicles on it.

Meanwhile, make sure your liability insurance is paid-up and you have an umbrella policy that protects you from any type of lawsuit filed against you.
jonpalombi
join:2011-07-15
Morrisville, VT

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Thanks for your quick replies, guys. The situation is this, when my wife and her Ex bought this property, their lawyer looked over the deed and everything was in order. The next day, the seller of the property wrote-in an unspecified ROW across the deed, on a manual typewriter. No punctuation, as with R.O.W. There was just the sudden emergence of capital letters ROW, along with the Bic pen drawing of a road on the deed.

Their lawyer didn't not re-review the deed on the day of the signing and passing of papers and so, nothing was noticed about any right-of-ways or easements. So, I doubt an easement document exists, since it was a scam at the last minute.

The only specification on our deed is "ROW 50 feet wide" and a hand-drawn road done in pen. Nothing specific at all, really.

Is the only course of action to proceed to court, so as to receive the judges decree or can any State or Federal agencies aid us? Like I said, I am unemployed and funds are tight on our end. Sadly, attorneys fees are an unaffordable possibility, at this point in my life. Is this a complete stalemate scenario?

Sincerely, Jon Palombi
Bobcat79
Premium Member
join:2001-02-04

Bobcat79

Premium Member

said by jonpalombi:

The only specification on our deed is "ROW 50 feet wide"

Does it give the purpose of the ROW? Without saying what the ROW is for, I don't see how it can be enforceable.

Also, the deed would have to have metes and bounds. Without that, no one can say exactly where the ROW is, and, again, I don't know how it could be enforceable.

50 feet is pretty wide for a driveway, so it sounds pretty bogus to me.

Spork35
join:2011-07-13
Methuen, MA

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The first step is find any easement documents that exist or get one created if it doesn't exist. Typically in most states if they have incress/egress rights to that easement they also have equal maintenance on it so if it needed to be fixed/paved/etc. they would owe you an equal share of the expense. Just by drafting a legal document and presenting it to them you might get them to stop using it and give up rights since they don't want financial responsibility. My wife's parents have this same issue and for the most part it works well. The snow is the big issue. They should alternate plowing but that doesn't happen.

KoolMoe
Aw Man
Premium Member
join:2001-02-14
Annapolis, MD

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I have no insight as to the actual problem...
...but since it would sure seem to be wise to get a lawyer who's familiar with such matters involved, worth talking to the one you used when the house was purchased?
Or write a letter to a couple local lawyers or companies and explain your situation as you have here, pleading for any assistance. Most places do pro bono work to some degree. Maybe your plight will find a sympathetic ear.
Bobcat79
Premium Member
join:2001-02-04

Bobcat79

Premium Member

Actually, since his lawyer screwed up and didn't review the documents properly, he should at least provide a free legal opinion on the situation and how to proceed.

marigolds
Gainfully employed, finally
MVM
join:2002-05-13
Saint Louis, MO

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said by Spork35:

The term you want to use here is 'easement'. If you don't ask the right question they don't have any idea how to answer. Given that the local city/state should know how to handle it.

I think that is the problem. If this was an easement, there would be no question that there was no ownership conferred. Right of ways can confirm ownership.

Was the deed -recorded- with the right of way?
Was there title insurance on the property?

Did they ever say the words "Right of Way" or just "ROW"? This is a silly question, I know, but may be sufficient to block this. Is there any description at all of the location of the right of way? If not, then it is probably unenforceable, even if recorded, and they have no claim.

Problem is, you have to stop them using your property or else they could establish an adverse use claim.
How do you do this? A simple and very nasty way (so be prepared for bad blood, but that is inevitable in this anyway).

Inform them they are trespassing.
When they do trespass, have them arrested.
Let them defend their "ROW" claim in court that way, and get the matter settled.

Edit: I am not a lawyer and have no knowledge of your local law, which is a -very- influential factor in deciding this. Ultimately though, if you want to defend your ownership claim, you are probably going to have to inform them they are trespassing and then have them arrested if they continue.
Bobcat79
Premium Member
join:2001-02-04

Bobcat79

Premium Member

Good point about title insurance.

Msradell
Premium Member
join:2008-12-25
Louisville, KY

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said by jonpalombi:

The next day, the seller of the property wrote-in an unspecified ROW across the deed, on a manual typewriter. No punctuation, as with R.O.W. There was just the sudden emergence of capital letters ROW, along with the Bic pen drawing of a road on the deed.

This is probably very much in your favor! ROW could just be a provision for a row of trees as a matter of legality. If the fact that it is a Right Of Way is not specifically called out including location on the deed I do not believe any court would enforce it! I know you don't want to get into a legal situation with this but I think it is going to be your only recourse. Assuming there is not an enforceable right of way you really have them over a barrel since they do not have access to their property! You could then sell them this access for a reasonable sum of money, said $250,000 or so! I'm sure as lawyers they would be more than willing to pay this. LOL!

whizkid3
MVM
join:2002-02-21
Queens, NY

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MVM

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said by marigolds:

Inform them they are trespassing.
When they do trespass, have them arrested.

This may be a good idea. Bear in mind, however, that for tresspass to occur in many locales, requires a fence, and/or posted no-tresspassing signs, spaced at a certain distance. Make sure that you know what is required, before and if you try to go this route. Someone simply walking on your property (or driving for that matter), is often not trespassing at all in the eyes of the law without proper notice/signage, etc.

robbin
Mod
join:2000-09-21
Leander, TX

robbin

Mod

In addition, in many states there is a right of ingress/regress which exists for landlocked properties. It should be on the property deed but even if it is not it would still be legally defensible. I think the OP could get in serious trouble by trying keep his neighbors from crossing his land to their landlocked property. On the other hand, I do not believe the neighbor has any right to use that ingress/regress for any purpose other than traveling to or from their property by either themselves or their guests.

At the very least, I think the OP need not only to consult with a lawyer to learn their rights and responsibilities in this matter but also to have the lawyer draft and send a letter to the neighbors regarding the same issues. That would be a first step before going to court and should not cost much. It may also provide some legal protection in the event of an accident.

marigolds
Gainfully employed, finally
MVM
join:2002-05-13
Saint Louis, MO

marigolds

MVM

Yeah, the OP needs to make sure that they fulfill the proper level of notification, and call the police specifically when they are riding the ATVs, since that would not be permissible under the access easement

zalternate
join:2007-02-22
freedom land

4 edits

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An easement to a landlocked property needs to be properly "surveyed" on to your property documents(also registered with whatever local/state authority). And not just a quick "pencil drawing on the half signed legal document(edit: adding that if the added on drawing was not initialed by the purchasing party, it can be considered an added on fraud). As some people have been known to "add things" to documents that were already signed in order to pull a quick one. So the former owner is on the hook(barring your States dispute time restrictions) for adding something to the document that was only a "verbal" with the other land owner.
I'd call it "not legal(I'm not a lawyer), as the former owner probably had a verbal agreement, that promised the land locked owner access rights. You made no such agreement with the other owner or the State/County/city. So court is the only remedy, when the land locked owner is being a pain.

Now from "driveway easements" I have seen or read about on a realestate sale, the easements are generally no wider than 20 feet, as it's just a driveway and not an interstate.

And don't just block off the easement, as some people have had that bite them in the ass in court, as being cruel and inhumane and destroying the property value of the landlocked property. But thats usually when a Judge is being a dick, since the land owners could not work out an agreement. Florida law is probably quite a bit different from Vermont law, so don't be bullied.

An easement of driveway is just to drive their vehicle to their property(access path). The landlocked property can never own that land(your land), unless you agree to subdivide it off your land and sell it to them.

Just a google search.
»www.realestatelawyers.co ··· -law.htm

And contact your State or Attorney General(or his department) for quick free help/advice in land disputes.
»www.vermont.gov/portal/

Chaoswar
Premium Member
join:2002-09-23
Northlake IL

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My question is say one of those children gets injured riding those ATV's on your property, can you afford the lawsuit that would entail?

fatness
subtle

join:2000-11-17
fishing

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said by jonpalombi:

The local police, Trafficking Commission and Department of Motor Vehicles refuse to get involved in any way, as they insist it is a "civil issue in which we have no jurisdiction". Who defines this issue of ownership and right of usage?

Must a judge decide this parameter in a court of law or can we find any documentation which clearly states... what is what?

Rights-of-way are a vague area. The term has been used frequently and inexactly over the years. Sometimes it conveys fee simple title to the underlying land, and sometimes it only confers the right to use the land for a use or uses (usually for access to a road, sometimes for access to utilities or a water source). The only way to know for sure what was conveyed, if it's not clearly stated in the original deed granting the right-of-way, is to know the intentions of the original parties at the time the right-of-way was first granted. Those parties are often dead. Then it becomes a civil issue, decided on the preponderance of evidence.

You won't get this resolved in your favor without either a lawyer or working out a suitable agreement with your neighbors. You can block their use of the right-of-way, but that just means they'd be taking you to court instead of you taking them to court.

The fact that your neighbors are lawyers means nothing. There are many areas of law, few attorneys know land title law, and few Florida attorneys know Vermont law.

You will get a lot of guesses on a message board. You will need a good, local land title attorney to resolve this if you cannot resolve it with your neighbors.
said by jonpalombi:

The situation is this, when my wife and her Ex bought this property, their lawyer looked over the deed and everything was in order. The next day, the seller of the property wrote-in an unspecified ROW across the deed, on a manual typewriter. No punctuation, as with R.O.W. There was just the sudden emergence of capital letters ROW, along with the Bic pen drawing of a road on the deed.

Their lawyer didn't not re-review the deed on the day of the signing and passing of papers and so, nothing was noticed about any right-of-ways or easements.

It appears that the original parties to this agreement (the seller and your wife and her ex) may be alive. Only they would know the intentions in granting the right-of-way. Later deeds will not shed light on this.

Toadman
Hypnotoad
join:2001-11-28
Mystery

Toadman

Member

Well it looks like you did the right thing, you asked them multiple times to respect the property. Do they not have enough land to ride it on their own property.

I will admit I do own ATVs and it does bring out the "best" in neighbors. There is a delicate balance, and you definately don't ride it in their yard.

Unfortunately there is no good solution. Lawering up isn't going to help the situation, and showing up with a series of documents that you recieved from us half baked experts from the internet isn't going to help you out much either.

Given that they are their only two months out of year, consider yourself lucky. Looks like you are stuck with this crap sandwitch.
PX Eliezer704
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join:2008-08-09
Hutt River

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said by fatness:

The fact that your neighbors are lawyers means nothing.

Except that they will try to use intimidation.
said by fatness:

There are many areas of law, few attorneys know land title law, and few Florida attorneys know Vermont law.

QFT x 3.

My wife used to work for a noted attorney who specialized in land title law, and my wife had training in title insurance work as well. It's a very technical area and few do it well.

As others said above, the TITLE INSURANCE COMPANY should be involved in this issue!
PX Eliezer704

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said by jonpalombi:

We live in Morristown, Vermont. We have neighbors who are land-locked....

You should look into free legal clinics, such as:
»www.vermontlaw.edu/x11480.xml

Toadman
Hypnotoad
join:2001-11-28
Mystery

1 edit

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said by jonpalombi:

The next day, the seller of the property wrote-in an unspecified ROW across the deed, on a manual typewriter. No punctuation, as with R.O.W. There was just the sudden emergence of capital letters ROW, along with the Bic pen drawing of a road on the deed.

Their lawyer didn't not re-review the deed on the day of the signing and passing of papers and so, nothing was noticed about any right-of-ways or easements. So, I doubt an easement document exists, since it was a scam at the last minute.

The only specification on our deed is "ROW 50 feet wide" and a hand-drawn road done in pen. Nothing specific at all, really.

So If i understand this right, by you refering to "their" laywer, do you mean the people that you purchased the property and home you are currently occupying had this happen to you, or was it your own lawyer that this happened to.

If it was the previous homeowner, and then you still accepted the title with this writing, I don't know what, if anything it would do for you. Also title insurance is intended to protect the homeowner in regards to prior clames to the property and it not transfering properly, it isn't going to take care of this situation. Pull out your title insurance document, like many insurance documents, it is going to define quite a bit for you. »www.landsurveyor.us/learn_d1.htm "survey exemption".

Sorry to rain on your parade, try to work it out directly with the neighbor to save money.
JoelC707
Premium Member
join:2002-07-09
Lanett, AL

JoelC707

Premium Member

I believe "their" in this case is his wife and her ex husband. I doubt he signed anything such as a new deed or whatever, it probably had the ex's name removed and his added or possibly just the ex's name removed (if even that, might still be as it was). In other words, I would take this hand drawn, last second "addition" to be just as much his problem as if it happened directly to him.

robbin
Mod
join:2000-09-21
Leander, TX

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said by Toadman:

Lawering up isn't going to help the situation...Given that they are their only two months out of year, consider yourself lucky. Looks like you are stuck with this crap sandwitch.

That is the reason the OP must obtain the services of a lawyer. Then they won't be "stuck with this crap".
PX Eliezer704
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Hutt River

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You've used your real name and town. I'm amazed that you felt a need to post that. Your neighbors will see it in no time flat.

PLEASE reconsider your internet safety practices.
PX Eliezer704

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And even though it's your hobby, please don't fight your neighbor with a sword!

Steve
I know your IP address

join:2001-03-10
Tustin, CA

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said by PX Eliezer704:

Your neighbors will see it in no time flat.

They're lawyers: too busy fleecing clients to spend time here
Bobcat79
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join:2001-02-04

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I looked him up on whitepages.com, and according to that site, the OP is at the "landlocked" lot. So either there's an error, I'm making a mistake, or the OP is not describing the situation accurately.

I can see the access road, and what seems to be ATV trails. The images don't seem to match what the OP described, but there's no lot boundaries shown, so I'm not sure.

Toadman
Hypnotoad
join:2001-11-28
Mystery

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said by robbin See ProfileThat is the reason the OP must obtain the services of a lawyer. Then they won't be "stuck with this crap".
[/BQUOTE :

So tell me, how will a lawyer help in this? You sue them because they are riding a 4 wheeler in an easement. Even if it is a legal issue with the easement, the court isn't going to not allow access to the property, in essence, making them land locked. Further, what is the law going to do, tell him that they are not allowed to ride the four wheelers, and then what, they would have to sue them every time to enforce it.
Lawyering up will do nothing else but make the lawyer richer, and as the OP said, he doesn't have the money for it, so the best way to handle it is talk to the neighbor again.