Situation one: It’s moving day and you are ready to start your new life in your new home. As you turn into the road leading to your home, you find that a padlocked gate has been installed since the last time you visited the home. You find that you have no way to get into your new residence.
Situation two: You eagerly submit building plans for a remodel that you have planned. Unfortunately, the county informs you that they cannot approve the plans because your property does not have proper access.
What has happened? Lack of access!
Title insurance policies
The ALTA (American Land Title Association) policies of title insurance provide affirmative coverage for a number of defined risks. One of the most important of these covered risks is the lack of a right of access to and from the insured property, or, in other words, that the insured property is not landlocked, and that the insured has the legal right to enter and leave the insured’s property without any other person obstructing this right.
What are the forms of access?
Access may be in the form of access to an abutting highway or street or to a private road, or by way of an easement over adjoining properties to and from either of the above.
How is access created?
Public highways and roads are created pursuant to statute (C.R.S. 43-2-201). This statute sets out four different ways in which a public road over private land can be created:
- By a deed dictating the road for public use recorded with the clerk and recorder of the county in which the road is situate, and accepted by the board of county commissioners (in fact no plan of subdivision may be approved unless all lots and parcels created by the plan of subdivision has access to, and conforms with, the state highway system and code);
- By dedication of a road for public use pursuant to a plat of subdivision, approved and accepted by the board of county commissioners or governing body of the municipality;
- By adverse use by the public of a road over private land, without interruption or objection on the part of the owners of the private land, for a period of twenty consecutive years;
- By purchasing toll roads from the holders of the toll roads, and opened to public use;
Roads over private land can be acquired by condemnation under the eminent domain powers of the counties.
Private roads are created:
- By agreement between the owners of the properties burdened by, and entitled to the benefit of, the road.
- This agreement can be included in the conveyance of land, either as a reservation of the road in favor of the grantor as the owner of adjoining land, or conveying the right to a road over land adjoining land owned by the grantor in favor of the grantee.
- By necessity, when as a result of a subdivision of land, a portion of the land was conveyed without providing access to the newly subdivided portion, effectively creating a landlocked parcel. Under the common law, there is an implication that the grantor intended to convey to the grantee all easements necessary for the grantee’s beneficial and reasonable use of the property, which includes access to the property.
- By operation of the law of prescriptive easements, a road can be acquired by adverse use of an identifiable road without objection or interruption by the owner of the land, for a period of at least eighteen years.
Title insurance considerations
The policies insure a legal right of access only, i.e. that the insured will be able to enter the property by way of a publicly dedicated right of way, or by way of a properly recorded easement or agreement granting access.
The policies do not insure:
- The quality of access;
- that there is actual, physical, access to the property
- that the access is over a particular route.
As examples, the insured has no claim under a policy based on the poor condition of the road, or that the insured must construct or improve a road to gain physical access.
A determination of access is to be made prior to insuring a transaction. The questions to be considered include:
- Does the property abut a physically open street?
- Does the property have access via a recorded easement?
If the title insurer cannot determine that the property has legal access, then the policy will be issued with an exception from coverage for the lack of access. This exception may also exclude any claim by reason of lack of physical access. This exception may be removed if the insured, prior to the policy being issued, can satisfy the title insurer that the property does, in fact, have legal access.
Some tips on how to avoid access issues
Look before you buy! Problems with, and impediments to, physical access may be visible from an inspection of the property. For example, a vacant property on the hill may have a fine view but steep terrain could make physical access impossible.
The answer is also determined by the type of property for most properties in a platted subdivision, access should not be an issue due to the legal requirements for access when subdividing.
But, if the property is not part of a platted subdivision, or a subdivision of a platted lot has occurred, then the question of legal access should be considered.
A survey is the most effective method to determine legal access. The survey should depict if the property abuts a public road. If the property abuts a private road, then the survey should depict that the private road or easement leads to the public road.