Who owns this road, and how can I legally build on it?

Episode-026-Website
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Hi, I’m Shawn, an attorney with Macomber Law in Coeur d’Alene, Idaho.  I serve clients who have real property issues in Washington, Idaho and Montana.  Today we’re talking about road ownership.

Let’s say a road no one uses is next to your property. And let’s say you think to yourself, “If only I could use that road, I could build a shop there and get all my tools/plants out of the garage/dining room. Nobody else ever uses it and it’s not even paved.” Tempting as it might be to build the shop on that lonely road, first find the answers to some basic questions: Like, is this really a road, or could it be something else? If it is a road, is it a private road (for example, owned by a subdivision or a private road association)? Or is it a public road (dedicated to or claimed by a city, a county, or a highway district)? If someone else – whether a private entity or governmental entity – has a right to claim the road, what steps can you take to legally claim the road for yourself? How can you avoid risking the local governmental code enforcement officer requiring you to tear down your brand-new shop? And who pays for all this anyway?

To find out whether the road is private or public, consider consulting your title report. If your home is in a city, town, or subdivision, your title report might contain reference to a record of survey, a city plat, or subdivision plat. Those instruments should indicate whether the road is held privately, or dedicated to a governmental entity like a city, a county, or a highway department. Your title report may simply refer to a “right-of-way,” whether public or private. If you live in a more rural area, you may need to contact your county road and bridge department to determine whether the road in question is public or private. If you still have questions about the plat, the survey, or the information you receive from the county, a qualified land-use attorney can help you find the answers.

If a governmental entity owns the road, you may be able to negotiate obtaining the portion of the unused road with the city or county, just as you would if a private person or road association owned the road. You may want to consult with a real estate agent or an appraiser to find out how much that abandoned road is worth in the current marketplace. This will give you a starting point to negotiate a sale or trade of the road with its owner. Recognize however, a private real property owner has no obligation to even start negotiating a purchase, exchange, or donation of the road to you. In these United States of America, private property owners cannot be forced to sell their property to another person absent a court order. 

On the other hand, if the road or right of way is owned by a city, county, or highway district, starting out negotiating with those entities is not usually the most effective way to realize your goal of putting that unused road to your personal use. Instead, state statute combined with city or county ordinances will dictate how you must proceed and achieve the goal of building shop. Generally, someone wanting to build on a public right-of-way must first ask the city or the county to give up the right-of-way. The legal term is “to vacate or abandon.” Most governmental entities require not only a written request or petition to vacate a road, but also that the petitioner pay the processing costs or fees.

Dedicated streets, sometimes called rights-of-way belong, not to the city or county, but to the people in the city or county. As publicly elected officials, the county commissioners or the city council have the obligation to be good stewards of publicly owned property (which includes dedicated streets or rights-of-way). To be fair not only to the petitioner but also to the other citizens they represent, the law requires that a city council or board of county commissioners hold a public hearing when presented with a petition to vacate or abandon a street. Notice of the hearing should be published in a local newspaper, posted on or near the right-of-way or street in question, and mailed to nearby neighbors.

At the hearing, the board of county commissioners or the city council are supposed to hear evidence from the petitioner, supporters, and opponents of the request to vacate the street or right-of-way, as though the board or council are judges. In fact, members of the board or counsel are required to act as judges, in a “quasi-judicial” capacity.  The members may only consider information and evidence that proponents or opponents submit during that hearing. Should they do otherwise, it is likely that they violated their constitutional duties. There is a procedure, “due process,” that the board or council must follow. This can get tricky, especially in smaller counties or cities where the council or board members wear many hats and the citizens may encounter the members at the local grocery store, Little League game, or church social. If you find yourself in that situation, your right to a fair hearing on your petition to vacate the unused road could be in jeopardy. Retaining an attorney at this point may well be in your best interests.

At the public hearing, the board or council has the responsibility to decide whether there is enough evidence to support vacating or abandoning the street or right-of-way, and whether doing so is in the public interest. After the members have heard all the evidence and testimony, they are supposed to “close” the public hearing, then open a “public meeting,” where the members talk about the evidence, and decide whether to grant or deny the petition to vacate. Once the members have made that decision, the law requires that they put their decision in writing. 

If the city council or board of county commissioners grants the petition, you are good to go. Congratulations! You may now proceed with building that shop. Recognize that when a publicly dedicated street or right-of-way is abandoned, the property gets split along the centerline – the boundary of each property owner on either side of the street now extends until they meet in the middle. You don’t get to take your half out of the middle. If you have the idea that your shop is going to span the entire vacated public right-of-way, you may be in for a surprise. At that point, your choice is to change your plans or buy a portion of your neighbor’s property.

On the other hand, the city council or board of county commissioners may deny your petition to vacate. Don’t despair; all is not lost. However, you may have an uphill battle, and the battlefield is the district court. It is highly recommended at this point that you NOT PROCEED WITHOUT AN ATTORNEY. Both Idaho and Montana require all parties to lawsuits to abide by the same procedural court rules, whether they have an attorney representing them or not.  The legal maxim that “a man who is his own lawyer has a fool for a client” pertains here – to both sexes!

In short, when seeking a retreat space and desiring to build it in the middle of that abandoned road, achieving your goal can be tricky. One misstep could prevent you from achieving that goal. The path forward is fraught with rules and procedures that a non-lawyer may find too intricate to navigate solo.  On the other hand, doing it the right way can be very rewarding.  While it’s possible to do it on your own, the prudent person seeks guidance from an expert. 

Guidance is one call or click away, and an ounce of prevention is worth a pound of cure. So remember if you have any questions, it’s prudent to CYA: call your attorney! 

At Timely Contract, our primary legal services include: real estate contract review, real estate contract drafting, legal opinions for title insurance exceptions, and research, due diligence, and legal opinions for properties.

If you have questions or concerns about a real estate transaction or issue in Idaho, Montana, or Washington, call today to schedule a no-charge consultation, (208) 712-4700.