Real estate without legal access to a public road is called landlocked property. Title insurance policies exist to protect mortgage lenders and homeowners from the costs of dealing with burdens on a property’s title. Standard title insurance usually covers lack of access. This means it can help pay for the costs associated with obtaining an easement if a house isn’t on a public roadway.
But title policies, individual situations, and state laws vary. Let’s take a look.
Say you want to buy a certain cabin in the Pocono Mountains of Pennsylvania. While it has a street address, the address is actually just a private road. In fact, the cabin is only accessible by way of this private road, which runs through several properties before it gets to the cabin. In other words, the only access to a public road is through other owners’ land.
Could you, and your renters or guests, come and go, legally and freely? To find out if the cabin has a legal right of access, a title search is key.
Generally, to have a right of access, a property should abut a public roadway — or a subdivision’s road with access to that public roadway. Counties have directories of their public roads, so you can tell if a road is public or private. If the access road is private, there has to be an easement to create the right of access.
In some states, a title can’t be transferred and loans cannot be made for real estate without access to a public road or a recorded, valid easement. If legal access is unclear, the title insurer may insist on a recorded court judgment showing the owner has a legal right of access.
Of course, a homeowner with access may sell an easement to the landlocked property owner. If so, the private easement has to be recorded, so it can be verified in a title search. This means the other owners’ titles must be examined as well as the title of the property being sold.
In questionable cases, the validity of an easement hinges on state law — and courtroom decisions. Let’s look at how courts have changed state law in Pennsylvania.
Landlocked property owners who lack recorded access easements have long turned to Pennsylvania’s Private Road Act. Under the Act, the landlocked real estate owner could petition the home’s county court of common pleas. A successful petition would result in an access road being laid on adjacent land, with costs paid by the owner of the landlocked property.
But, in recent years, Pennsylvania courts have held that such easements are unconstitutional takings of other people’s property. These decisions have held up in the court of appeals. To reconcile the tension between the courts and the legislature, Pennsylvania lawmakers created a new standard. Today, a landlocked Pennsylvanian must show that the public would receive the key benefits of a new access road.
The upshot of this change? If you’re buying that cabin, it’s critical to be able negotiate an easement with the other owners. If you already own the cabin, you no longer receive the same deference under Pennsylvania’s Private Road Act you’d have had in earlier years — and that could make your property harder to sell. If you’re a nearby landowner who has the public road access to the public road to the landlocked property, you may be able to negotiate a higher price for an easement from the owner of the landlocked parcel.
There is more than one way to obtain the legal right to use another owner’s property. Some landlocked owners are able to get friendly accommodations, granted by the legal owner. But just because the last person who owned that cabin had permission to drive up to it, doesn’t mean a new owner can presume to have the same permission.
Many easements arise by:
An easement by necessity occurs when a piece of real estate is divided by its owner into multiple parcels — cutting areas off from public road access. Past title holders, for example, might have transferred sections of their farmlands to others without expressly granting easements, and the sections were not necessarily adjacent to each other. Easements by necessity would thus be needed; otherwise, the prior owner has inadvertently created inaccessible properties with no practical use.
In plain language, if someone habitually uses your land long enough, they could get a right to keep doing it. In legal language, longtime use can give rise to an easement without the legal owner’s permission. Under the common law, a valid easement can be formed through “hostile, open, notorious” use on a regular basis. “Open” and “notorious” means someone isn’t sneaking across, but is, rather, visibly and regularly using a part of another owner’s land. “Hostile” means the person using the space does so without paying for it or being invited to do so. No property taxes have to be paid by the party obtaining a prescriptive easement. After a span of time specified in state law, the trespasser(s) may claim a legal right to access, but not ownership.
☛ Will you have a survey done before your coming real estate deal? Remember, a title search does not include a survey. A survey could uncover easements that weren’t obvious during a physical or virtual property tour.
If the title search does show an easement, it could be limited to a one user, or include terms under which it eventually expires. That’s why you’ll find exceptions discussed in title policies.
Thus, access easements aren’t a free pass for every kind of use. One might allow agricultural passage but not street traffic. Or driving, but not parking. Or parking, but only by those who hold title to the landlocked property. Often, easements are limited to reasonable or customary uses and restricted by state and local rules.
Moreover, even where a title policy covers a legal right of access, it might not ensure the owner can physically use the access. The access could be impassable by car, inconveniently located, or subject to federal regulations or restrictions, for just a few examples. Ask the title insurer for specifics. And don’t forget to check on utility access. Utility easements are found on the certificate of title and the recorded map and plat. Utility companies also keep data on routine and emergency access. Owners should have a copy of the property survey showing such easements.
Pro tip: Title insurance may not apply to changes after the buyer pays the one-time premium for coverage. For example, imagine you buy a property in 2021, and opt to buy an owner’s title insurance policy, and someone later claims to have an easement that hadn’t been noticed before. If it’s a valid easement that existed before the date of your policy, the insurer would be responsible for missing it.
A preliminary title report will show the buyer where easements exist. Consult with a real estate attorney, in the state where the property exists, to best address access questions in any particular case.
Easements bring up complicated issues. Heirs’ and creditors’ rights are involved when one landowner cedes control to another. Other factors such as safety and the costs of maintaining the easement also arise.
Clear knowledge of your rights and duties can be arrived at through the help of a local attorney who understands the interplay of legislation and courtroom decisions. Keep in mind that laws can and do change. Seek an advocate with expertise and recent experience in easement resolutions.
Remember, too, that owner’s title insurance is not included in the title insurance routinely paid for by buyers to protect lenders’ interests. An owner’s title insurance policy that covers your right of access can help resolve any disputes for the duration of the time you and your heirs own the property.
Supporting References
Stewart Title Guaranty National Underwriting Manual Ch. 1.12: Access, Right Of.
Photo credits: Travis Saylor and Artem Saranin, via Pexels.
