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The neighbor's fence blocks access to property

Published Oct. 2, 2005

Question: Last year I bought 15 acres. There were two entrances. One is a dirt road that is flooded much of the year.

The better dirt road has a utility easement over a neighbor's land, but he recently erected a fence across it because he doesn't like the neighborhood teens drinking and leaving beer cans there. He refuses to remove the fence so I can reach my land where I want to build a house. What should I do?

Answer: Consult a local real estate attorney. When you bought your land, did it include an easement to use that utility easement road over your neighbor's land? Check the deed. If you own such an easement, you may have to get an injunction stopping the neighbor from erecting a fence to block your access.

If your deed did not include such an easement, and your landlocked property is not otherwise reasonably accessible, you may have legal rights to an easement by necessity, but you will need to prove past common ownership with the parcel over which you claim an easement by necessity. That's why you need a real estate attorney.

Canceling escrow account

Question: When we obtained our new mortgage, we were given the option of paying our property taxes directly or having an escrow account, whereby we pay 1/12th each month.

We were told that we could discontinue the escrow account with no problem. We found that the lender was overcharging us about $100 a month, and we now want to cancel the escrow account, but the lender refuses to do so, saying we can't terminate the account once it's set up. This is not only infuriating but unfair. What can we do?

Answer: If you have a VA, FHA or PMI (private mortgage insurance) mortgage, it is virtually impossible to cancel an escrow impound account for property tax and fire insurance payments.

I will presume that you don't have such a mortgage. Lenders hate to let go of escrow accounts because they have the investment use of the "free money" in those accounts until the property tax and insurance bills must be paid. A few states require very low interest "petty cash" payments to borrowers on those funds.

You will have to get tough with your lender. Speak to a loan service supervisor. If necessary, write and phone the lender's president until you get results. You might even need to retain a real estate attorney to get that escrow impound account canceled.

Also, send copies of your letters to your U.S. senators and congressman or woman because this topic may interest them for possible legislation.

What "as is' sale means

Question: I'm negotiating the purchase of a commercial property that the seller is offering for sale "as is." What protections can I get to avoid surprises such as plumbing, wiring and structural problems? Is there a warranty policy available for commercial properties like there is for homes?

Answer: An "as is" real estate sale means that the seller makes no warranties or representations and will not repair any defects. In most states, "as is" sellers must still disclose known defects.

Ask a real estate attorney to prepare your commercial property purchase offer. Be sure that it is contingent on your approval of a professional inspection report.

After the seller accepts your offer, you then have an opportunity to use "due diligence" to discover any defects in the property, since "as is" really means "buyer beware." I am not aware of any commercial property warranty policies like those available on houses.

Robert J. Bruss is a nationally syndicated columnist on real estate. Write to him in care of the Tribune Media Syndicate, c/o the Times, 435 N Michigan Ave., Suite 400, Chicago, IL 60611. Questions of general interest will be answered in the column.