Legal Question in Real Estate Law in Montana

Re: Transferability of acess easements

This is a tricky question that I don't think that I can answer fully. The easement does "run with the land" and stays with the land regardless of the ownership, unless the same person owns both parcels of land, at which time the easement becomes extinguished. This is called unity of title. It also makes sense that the person would not need an easement to cross his own property.

As to your question, there cannot be any use of the easement outside the granted scope. If the grantor decided that only one lot owner could use this road, then allowing another additional lot owner to use it would be outside the granted scope. I believe that you can sell or rent out your easement, but if you do, you then lose your right to use the easement while your neighbor is also using it. Therefore, you can't rent or sell your easement and retain your right to use it also. I am not 100% sure of this, but I'm pretty sure.

You can also gain an easement by prescription and necessity. By prescription, a person used the road against the interests of the land owner and with notice to the land owner that the use is against his interests. If that's done for 5 years, then you get an easement. You can also tack your time to your predecessor in title to reach the five year time limit. An easement by necessity arises when there is no other way to access the property except by use of the road. If you can prove that your neighbor has no other choice but to use the road, he may get an easement.

Re: Transferability of acess easements

It depends. If Property A sells Property B an easement, then it runs with the land forever. Property A could say it's only for Property B and that Property B cannot re-sell or use for any other purpose--or not. More likely than not, if Property B has a non-exclusive easement over Property A and no limits to that easement, Property B could grant Property C the right to use it. At that point, however, it might also be a good idea to enter into a road maintenance agreement so that all 3 properties share equally in maintenance costs.