Can We Sell the Property?

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We own property that has an exclusive right of way to the both of us only. Can we still sell this property?

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

The short answer is yes. If I understand you correctly, you own a piece of land, and you also have a right-of-way (that is, the right to pass over someone else’s property) that allows you to reach the property you own. The right-of-way names the two of you (the owners of the property) as the only ones who have that right.

So, can you sell the property you own? Of course. The real question is, if you sell the property will the new owners also get the right-of-way, or will they have a property that they can’t reach? The answer to that depends on how the right-of-way is written. Normally, these sorts of documents are written either to specify that: a) the owners of the property are the ones who own the right-of-way, meaning that whoever owns the property in the future also gets the right-of-way, and even though you’re named in the document, it’s in your capacity as owner; or b) specifying that the “heirs or assigns” (or similar language) of the right-of-way owner gets the right-of-way. In which case, you would take the position that you are “assigning” your right-of-way along with the land when you sell it. If the document is silent on this point, then you have a tougher row to hoe. It is possible, in theory, to have a right-of-way that belongs to an individual, independent of their owning a piece of property. And such a right-of-way would not, therefore, pass along with the land. That would be very unusual in the sort of configuration you’re describing (the right-of-way leads to your land), but you would need to have a determination made. If the owner of the land that the right-of-way goes over is not willing to clarify, you might be looking at a lawsuit to get a judge to decide the point. Hopefully it won’t come to that, but I would strongly suggest you consult with a local real estate attorney before taking any action.



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Author: House Attorney