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Access: Essential For Real Property
Confirming access to a property is an important part of underwriting a title insurance policy and representing a client, even if in some cases all it takes is reviewing the property’s description and looking at a survey or a satellite view of the address.
Coverage
- In the Standard Policies, there is coverage against loss resulting from there being no right of access to and from the Land.
- In the Expanded Policies, there is coverage against loss caused by a lack of actual vehicular and pedestrian access to and from the Land, based on a legal right.
- More specialized coverage regarding access is available through endorsements.
Is there access by way of a public road or private right of way?
- The fact that a property has an address on a road does not necessarily mean that the property has either access to that road or a right to use the road.
- If the property shares a boundary with a public road, then there is access to and from the road absent an imposed prohibition or physical barrier.
- If the property adjoins a private right of way or easement, access will depend on whether the property has an easement over that right of way all the way to the public road.
Underwriting when access is via private roads or easements
- Rights in property, including access easements, are usually created or imposed for the benefit of private parties in one of two ways:
o Grant of easement by the owner of the property over which the easement runs in favor of another property or party (express grant), or
o The owner of property records a map, plat or plan showing lots or parcels served by roads and easements and then conveys out the parcels with reference to the recorded map.
- When access is indirect, meaning that the property depends upon a private right of way for access to a public road, it is important to:
o Determine how and when the easement was created to confirm that the grantor or developer held title in the easement area and could convey the access easement.
o Review the terms of any express grant and, in cases where the property description refers to a recorded map, review the matters and notes shown on the map, especially those matters affecting the subject property. Access easements must contain language indicating they permanently benefit, are appurtenant to or run with the land requiring access.
- Easements benefiting the subject property should be noted as a "together with" in the property description of any title insurance policy, but the best practice is to also take a corresponding exception in the policy’s Schedule B for the “terms and conditions” of that beneficial easement.
- Easements and other interests shown on recorded maps that encumber or affect the subject property should be included as Exceptions in the policy’s Schedule B.
Previously undeveloped, landlocked or newly created parcels and islands require special attention
Access rights need to be current
- Private rights can be conveyed away, taken by eminent domain, or lost by tax sales, judicial action or statutory effect.
- Public rights in a public road can be restricted, taken, or lost by formal discontinuance or abandonment over time.
Helpful resources to examine the property and confirm access:
- Available surveys of the property or adjoining properties.
- Google Earth (search by address).
- Google maps (both overhead and street view, by address).
- Geospatial Information (GIS maps and data) about the property, by address.
- Other information from government offices regarding local or state roads.
If you have any questions or concerns regarding access to property being insured, contact Liz and/or Steve. Our experienced Underwriters are here to help, and we look forward to hearing from you.
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