A consideration unique to buying farms, ranches, and land for sale is access. When we think of residential and commercial real estate in town, access to the property is almost always assumed. However, when dealing with rural real estate, access should never be assumed, and ensuring legal access and understanding the rights of others to cross your property are some of the most important issues to understand during the due diligence process.
According to a recent blog on the issue, penned by our friend and renowned water rights attorney, Kent Holsinger, Esq. for the Western Landowners Alliance, potential ranch owners should ask the following questions:
- Does the road to my property (or potential property) cross a neighbor’s before it gets to me?
- What about that two-track that crosses my property?
- Are others using it to access their property?
- What if my access road crosses federal or state land?
Kent continues and offers these steps to resolves access issues:
Identify the property of interest and the nearest public road
This is often a county road or a state highway. Be sure to use a good map that clearly depicts private, state and federal lands. Use resources like National Forest maps, US Geological Society quadrangle maps, realtors’ websites, as well as Google Earth.
Determine if the access road in question crosses other properties
The exceptions to your title commitment will indicate such access issues. In some cases, a survey may be necessary to determine property boundaries, which can takes time and expense. If your access road crosses public lands, these rights-of-way may not be recorded and you may need to check with the public land agency to determine if the access right is permitted.
Anticipate disputes over access and negotiate
As neighbors and times change, disputes over access have become more common. Seek to negotiate a solution—perhaps offer to pay market value for the acreage in the easement.
If negotiations fail, legal action may be required
In Colorado and much of the West, many access issues can be resolved by:
- private condemnation
- implied easements
- prescriptive easements
In any event, when securing access, consider the following:
- the uses to be permitted
- any restrictions, seasonal or otherwise
- the nature and width of the road
- whether to prepare a road maintenance agreement
Kent also warns that a survey of the road will likely be required. “Resolving access issues will enhance the rights to use, enjoy and convey property and may improve the value of your property.”
For Kent’s full article on access, read on at the Western Landowners Alliance blog.
For a convenient video recap of steps to take in answering access questions when buying land for sale:
***This article is not meant to be legal advice or to create an attorney-client relationship. Please seek legal advice if you encounter access issues.***
Kent Holsinger is the founder of Holsinger Law, LLC in Denver, Colorado. The firm represents a variety of clients on lands, wildlife and water law and has been recognized in the Wall Street Journal, Washington Times, Denver Post, CNN.com, NPR and many other outlets. Kent can be reached at (720) 330-8243. For more information, please visit the firm’s website at www.holsingerlaw.com.