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| More sample articles from Vermont Property Owners Report | ||||
| Law and Taxes | ||||
| The following sample article first appeared in the Law and Taxes section of the April - May 2002 edition, Vol. 17 No. 1, of Vermont Property Owners Report. | ||||
| The Myth Of Landlocked Vermont Land by Paul Gillies, Esq. |
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| Mr. Gillies is a partner in the law firm of Tarrant, Marks and Gillies, P.O. Box 1440, Montpelier, VT 05402. Tel: (802) 223-1112. There is a perennial property rights question that comes up from time to time: Is there such a thing as landlocked land in Vermont? Many parcels appear to be landlocked on the map. They are not served by a town highway or a private right-of-way. How then can a landowner reach his land? Before we get to the details, it's hard not to ask how a person comes to own a landlocked parcel in the first place. It's usually a long story, involving a misunderstanding about what was being purchased or sold, the lack of a good survey, and the unwillingness of adjoiners or owners of other rights-of-way to allow their property to be used to reach the parcel. But let's avoid a sermon here on the need for greater care in land transactions. Failing negotiation and agreement, the next stop is the town clerk's office, to see what the deeds say about the situation. Although most landowners have title searches done on their property, these are usually limited to a 40-year period, while earlier deeds, some going back to the eighteenth century, are sometimes the real source of rights of access to inaccessible plots of land. If the deeds are silent, saying nothing expressly about a right-of-way, the history of the creation of the parcel is the next inquiry. For that we need to know how the land was created and what happened to the remaining piece. The first cut of a Vermont town occurred before any settler arrived. Those who bought charters, known as proprietors, took it as their first order of business to hire a survey done of the town. They would then meet, with a copy of the division map before them, and pick numbers out of a hat. The first division lots were usually 100 acres each. The lot you own today is a part of one of these lots, but it has been subdivided over and over into smaller pieces, some of them served by roads. The "habendum" clause in a deed describes what is conveyed. The description usually begins with the familiar words, "Being the same land and premises …" The key words for the deed you want to find in your search begins, "Being a part of the same land and premises…" The grantor of that land retained another part in that transaction. Once you know his name you need to open the General Index and locate the book and page of the deeds in his chain of title. This can be a challenge, but your goal is to find the size, shape and location of the parcel at the time of the sale to you. Let's look at what we have now. We have a parcel, presumably served by a road, and another parcel created from it made inaccessible by the subdivision. With these facts, the first principle in the law of landlocked property presents itself: when a parcel of land is landlocked due to a subdivision of a larger parcel, there is a "way of necessity" allowing access across the remaining land. The way of necessity is a common law principle, not found in any statute book, but an acknowledged right in Vermont law (and the laws of other states, with some variations). It is based on the public policy that "no land be left inaccessible for the purposes of cultivation," as Justice James M. Tyler explained it in Willey v. Thwing (1896). In other words, the state has an interest in the productivity of its land, and will override even the express wishes of a crabby relative or sharp trader by requiring a right-of-way, as a kind of inalienable right of property. Incidentally, when the court establishes the way, the route is chosen based on the needs of the landowner whose land is crossed. Here is Judge Tyler's axiom: "If A. conveys land to B., to which B. can have access only by passing over other land of A., a way of necessity passes by the grant. If A. conveys land to B., leaving other land of A., to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant." Now a way of necessity is not just yours for the taking, if you have some other means of reaching your land. Mere convenience, the courts tell us, won't justify a way of necessity. Suppose you fail to find a commonly-owned parcel to justify a way of necessity. There may yet be a way to reach landlocked property, if there was ever a public highway running over or along the land. Suppose the town discontinued a highway in that location years ago. The town's discontinuance returned the roadbed to the landowners over which the road passed, but those who used the highway to reach land bordering it retain a right-of-way. Is there such a thing as landlocked land in Vermont? Probably not. "Probably" is a word of reservation. Creative minds or cruel circumstances might keep you from your land, when any of these arguments fail, but in most cases the real challenge in unlocking landlocked parcels is having the resources and patience required of a lawsuit, when talking to your neighbor isn't enough. |
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| This sample article first appeared in the Law and Taxes section of the April - May 2002 edition, Vol. 17 No. 1, of Vermont Property Owners Report.
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| For more sample articles from Vermont Property Owners Report, click here. |
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