Right of access is the right of the owners, tenants, and visitors to enter upon and leave the property. All ALTA and CLTA title policies cover a right of legal access; and the 1997 Stewart Title Guaranty Company Gold Policies (both Owner's and Loan and (east coast) and (west coast) versions) cover pedestrian and vehicular legal access. The ALTA and CLTA 1998 Homeowner's Policy cover actual or physical access, both pedestrian and vehicular, in addition to covering legal access.
For the right of access to exist, the property must:
- Abut a public street, road, or highway; or,
- Abut a street within a subdivision that has access to any public street or road; (the street within the subdivision may not be dedicated for public use); or,
- Be benefited by an easement.
If the access from the land to the dedicated public right of way is over a private easement, the private easement must be valid and recorded; and the title to the servient tract must be searched. If an unrecorded access easement is based on state statutory presumptive ownership such as ownership of an abandoned railroad easement, contact the Stewart Title Guaranty National Legal Department for approval prior to the issuance of a title policy on any landlocked, subject property.
Any property that lacks legal access is described as landlocked. The National Legal Department of Stewart Title Guaranty Company must approve the issuance of a title policy on subject property if access is based on an unrecorded "implied easement” or an “easement of necessity," without judicial determination and decree. Generally, to insure title, Stewart Title requires a recorded judgment determining that the insured owns a right of access by implied easement of necessity or prescription.
The Right Of Access In Title Insurance Policies
ALTA title insurance policies specifically assure the insured against loss or damage, not exceeding the amount of insurance stated in Schedule A, sustained or incurred by the insured by reason of: "... lack of a right of access to and from the land." See discussion in 1.08.
The courts have generally interpreted "access coverage" to describe the presence of legal access, which may differ from physical access. For example, in a recent California case, the court held that there was legal access to the abutting road, although the subdivision restrictions prevented the owner from obtaining a driveway permit on that portion of the land that abutted the road. However, whenever we are aware of a limitation on accessing an abutting road, such as, a restrictive covenant, or the requirement of securing a permit from state or federal authorities, those limitations should appear as Schedule B exceptions.
When examining access rights, it should always be remembered that while the Subject Property may have a mailing address of “123 Johnson Lane”, for example, Johnson Lane may be a private road. Counties and municipalities usually maintain a listing of all public roads within their jurisdiction. They should be consulted if there is any question as to whether an adjacent roadway is public or private. If the roadway is private, there should be a written easement of record and title to the easement should be searched.
The title policy covers a general right of legal access to the property; but specific means of access, physical condition of access, and location of access are not covered. Citing precedents from Florida and North Carolina courts, a Missouri court held that the insured possessed legal access, although the "goat path" was traversable only by "foot or horseback. The title policy does not insure against unrecorded defects in the physical condition of the land or impediments to the right of access.
When examining the title to an access easement, care should be taken to note any limitations on the use or scope of the easement. An easement can be personal to a particular user, for example, or the easement may expire under certain conditions or after a stated amount of time. Such limitations should appear as exceptions in the title policy or policies.
Cases frequently arise where the Owner of the servient estate (the land across which an easement runs), may have consented to and granted an easement with a particular quality and scope of use in mind, but objects to a material change in the use of the easement. For example, the servient Owner may have granted an easement for access to an agricultural property by farm machinery and vehicles, but may object to that easement being used to access a residential development because of a marked increase in the volume of traffic. Where an easement is silent as to the uses and purposes of an easement, Courts will generally attempt to determine the intent of the parties at the time the easement was granted.
See Section 1.08 for further discussion.