Carving Three Acres Out of the Tandy Farm

The parent description is workable for the whole farm but tells a surveyor nothing about where a three-acre slice sits. Accepting a deed that says 'three acres off the north side' would leave the parcel unmarketable and uninsurable.

Steps:

1. Boundary survey by a licensed Kentucky land surveyor that re-establishes the parent tract from monuments and adjoining deed references and lays out the new three-acre parcel.
2. Metes-and-bounds legal description from that survey - bearings, distances, monument calls, and a reference to the recorded survey plat by cabinet and slide number.
3. Plat approval under the Harrison County subdivision regulation, since the new parcel is under five acres. Also confirm a septic or sewer approval from the health department; the county will not approve a building lot without a wastewater solution.
4. Deed and recording using the new description, with the source-of-title recital back to Deed Book 88, Page 401, delivered and recorded in the Harrison County Clerk's office.
5. Check the parent deed for restrictions - a subdivision restriction or a retained mineral interest in the 1988 chain can control what the nephew may do with the lot.

Nothing in this list can be skipped just because buyer and seller are related.

The length of time is not the issue; adverseness is.

• The statutory period. Kentucky allows an interest in land to be acquired by prescription after 15 years of use. 2007 to the present clears that comfortably.
• The elements. The use must be open and notorious, continuous, and adverse - under a claim of right rather than by permission. A driveway serving a barn is visible and continuous, and Rufus clearly had notice.
• The weakness. Use that began with the owner's permission is permissive, not adverse, and a permissive use is a revocable license that never ripens into an easement no matter how many decades pass. The neighbor himself says permission was given in 2005. Courts also view use between neighbors and family with a presumption of permission, which puts the burden on the neighbor to prove the use was adverse.
• The effect of the split. If a valid easement exists, it burdens the new three-acre parcel because the driveway is open and visible - that is constructive notice to the nephew even though nothing is recorded.

Because the facts are contested, do not close on assumption. Obtain a written affidavit or quitclaim release from the neighbor extinguishing any claim, or grant an express recorded easement, and show the drive on the survey so the buyer's title company can address it deliberately.

The exception is the insurer's statement that it will not defend a dispute over the driveway. Risk then depends entirely on the documents.

• General warranty deed. Rufus warrants against encumbrances. If the driveway is a valid prescriptive easement, it is an encumbrance, and Rufus has breached the covenant even though he did not create it - unless the deed conveys expressly subject to it.
• 'Subject to' language. If the deed or contract says the buyer takes 'subject to any easements of record or visible on the ground,' the buyer takes the risk and the warranty stops at that exception.
• Contract drafting. The purchase contract should either require Rufus to deliver a release or quitclaim from the neighbor before closing, or reduce the price and recite the driveway as a permitted exception with the survey attached. Either way, the buyer should know exactly what is being purchased.

The mistake here is letting boilerplate 'subject to' language ride along without discussion. It quietly transfers a real, unquantified risk from seller to buyer, and once recorded it follows the land forever.