Private Condemnation and Landlocked Parcels
Question: My brother and I recently inherited from our parents a 20-acre parcel of land (“20 Acres”) in the Prescott Valley area of Yavapai County. Our parents bought this 20 Acres back in the 1970s from Ned Warren, the “King of Land Fraud.” This 20 Acres has no legal access to a public highway. Although my brother and I have visited this 20 Acres several times over the years, on our last visit the dirt road that we had always used for access to the 20 Acres was blocked by a home on a 5-acre lot. We want to sell this 20 Acres, so we talked to a Realtor. She said no buyer will purchase this 20 Acres without legal access to a public highway. How do we get this legal access to a public highway?
Answer: Under the Arizona Constitution and statutes there is both public condemnation and private condemnation. Examples of public condemnation are the State of Arizona condemning land to build a freeway, or the City of Phoenix condemning an alleyway to have access for their garbage trucks. Examples of private condemnation are condemning access for your 20 Acres to a public highway, or condemning a portion of your neighbor’s land for the remediation of soil settling problems on your land caused by runoff from your neighbor’s land. Public condemnation and private condemnation both generally require monetary compensation to the property owner whose property is being condemned.
In order to get private condemnation now for access for your 20 Acres to a public highway, you should first meet with a local real estate lawyer. This lawyer initially should order a title report to confirm that there is no legal access for your 20 Acres. Surveyors and engineers should then be consulted to determine the best option for physical access to your 20 Acres over the 5-acre lot. If an agreement can be reached with the owner of the 5-acre lot for this physical access, formal documents for an access easement, generally 30 feet wide for motor vehicles, can be executed and recorded. If an agreement cannot be reached, however, you and your brother will have to file a lawsuit to request a judge to order private condemnation for this access easement, with monetary compensation to the owner of the 5-acre lot. The amount of the monetary compensation paid by you to this owner will frequently be a “battle of the appraisers.” After the judge orders private condemnation of an access easement, you and your brother can then sell your 20 Acres to a buyer with this access easement.
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