[MT] Can continuous use of an access road create a prescriptive easement to prevent a landlocked property?

MT Real Estate Law

Liz

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In Montana, a prescriptive easement can be established if you can prove that the use of the road has been open, notorious, exclusive, adverse, continuous, and uninterrupted for a statutory period, typically 5 years. (MT Code § 27-2-202) This statutory period generally tracks Montana's adverse possession framework. This means you must show that you have used the road as if you had the right to do so, without permission from the new owners.

Gathering Evidence - Collect any documentation that supports your claim of continuous use. This can include photographs, witness statements from neighbors or family members, and any historical documents or maps showing the road's existence and use over time. If you have any written communication with the previous owners acknowledging your use of the road, that could be very helpful.
Consulting a Real Estate Attorney - Given the complexity of property law, consulting with a local real estate attorney who understands Montana's specific laws and precedents is crucial. They can help you assess the strength of your case and guide you through the legal process.
Attempting Negotiation - Before pursuing legal action, try to negotiate with the new owners. Explain your historical use of the road and see if a mutual agreement can be reached. Sometimes, a simple conversation can resolve the issue without the need for legal proceedings.
Filing a Legal Claim - If negotiation fails, your attorney can help you file a claim in court to establish a prescriptive easement. This will involve presenting your evidence and possibly having witnesses testify to your use of the road.
Considering Alternative Access - While pursuing a prescriptive easement, explore if there are any alternative routes to access your property. This could be a backup plan if the legal route becomes too challenging or time consuming.

Please let me know if you have further questions.

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I own a property near Canyon Ferry in Montana that is accessed by an easement road. Recently, neighbors purchased the parcel that contains the only entrance road/easement that has historically been used to access my property. My family and others have used this access road for many years to reach the property. The new owners are now saying they do not want us to use that access anymore, which would effectively landlock my property.

I have been told that in Montana, if access to a property has been used continuously for many years, a court may allow that access to continue even if there is not a clearly documented easement, sometimes under doctrines related to prescriptive easements or adverse possession.

My question is: If I can demonstrate that this access road has been used openly and continuously for many years as the only way to reach my property, would Montana law typically allow a judge to recognize a prescriptive easement or similar right so that the property does not become landlocked? What kind of proof would typically be required to establish that?

Lexi, Chatbot

I understand how concerning it must be to face potential landlocking of your property. Have you had any discussions with the new owners regarding your historical use of the access road?

Sort of.

Lexi, Chatbot

Do you have any documentation or evidence, such as photographs or witness statements, that can support your claim of continuous use of the easement road?

Yes.

Lexi, Chatbot

Is there anything else the Real Estate Lawyer should know before I connect you? Rest assured they will be able to help with your access road issue.

No.

Liz

Hi there! Welcome to AskaLawyer. My name is Liz and I've been an attorney for more than a decade, and I am here to assist with your legal concerns. Just so you are aware, our service is a legal information only site. No attorney-client relationship is formed from our conversation. So I can best help, to be clear, is there no other access to your property, including through other properties?

Liz

Gathering Evidence - Collect any documentation that supports your claim of continuous use. This can include photographs, witness statements from neighbors or family members, and any historical documents or maps showing the road's existence and use over time. If you have any written communication with the previous owners acknowledging your use of the road, that could be very helpful.
Consulting a Real Estate Attorney - Given the complexity of property law, consulting with a local real estate attorney who understands Montana's specific laws and precedents is crucial. They can help you assess the strength of your case and guide you through the legal process.
Attempting Negotiation - Before pursuing legal action, try to negotiate with the new owners. Explain your historical use of the road and see if a mutual agreement can be reached. Sometimes, a simple conversation can resolve the issue without the need for legal proceedings.
Filing a Legal Claim - If negotiation fails, your attorney can help you file a claim in court to establish a prescriptive easement. This will involve presenting your evidence and possibly having witnesses testify to your use of the road.
Considering Alternative Access - While pursuing a prescriptive easement, explore if there are any alternative routes to access your property. This could be a backup plan if the legal route becomes too challenging or time consuming.

Please let me know if you have further questions.

Liz

46,034 satisfied customers

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