| I often receive questions concerning access to properties. Below are descriptions of the different types of property access by private right of way.
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In addition to insuring the title to property, title insurance policies insure against loss incurred if there is no legal right of access to and from the property (or in real estate language, no right of ingress and egress).
Private right of way can be created in various ways.
Sole Ownership:
A private driveway between a public right of way and a more secluded residential or other type of lot may actually be under the same ownership. Often these are called “flag” lots because their shape often resembles a flag – the pole being the strip of land that abuts the public road and provides access. This strip may serve only the owner’s property or may provide access to other properties by agreement (see Easement below).
Shared ownership:
Sometimes title to a private road right of way (example: Tract X) may be held by the owners of the lots that border it. Title to the private roadway is held by the owners as “tenants in common”. A property description example would be Lot B together with a 1/2 interest in Tract X. This type of arrangement is common in smaller subdivisions where the developer established the lots along a common private road leading to the public right of way. Typically, there will be a written agreement regarding use, maintenance, costs, dispute resolution and/or other matters concerning the right of way.
Association control:
The process of creating a filed subdivision will normally include the dedication of the roadways in the subdivision to the public. The roadways then become city streets or county roads under governmental jurisdiction. Less frequently, roadways in a subdivision may be established as private rights of way. Access between a particular lot or unit and a public roadway will be by way of a private road owned by the subdivision lot owners as a common area. The control of road use, maintenance, costs and other matters may be through the subdivision’s Homeowner’s Association in accordance with the subdivision’s covenants, conditions, restrictions and association by-laws. This arrangements can also apply to condominiums.
Easement:
An “easement” is the right to use someone else’s property for a specific purpose. It is limited to that purpose. There is no such thing as an easement per se. One frequent use of an easement agreement is to provide for a private access roadway. Most commonly people refer to an easement as a roadway over the land of one owner to provide access to the property of another owner. Technically an “easement” is the roadway itself. Easements can be mutual such as a shared driveway between two abutting properties, each owner conveying an easement interest to the other for that portion of the driveway on the owner’s property. To provide access over several properties there may be a mutual easement agreement among several property owners.
Easements are usually perpetual, but can be restricted to an express time limit. An easement for access is nearly always a non-exclusive easement. This means the owner of the property (the servant owner) is subject to the easement and may convey similar easement interests over the same area to other property owners. The servient owner remains the title holder to the land burdened by the easement interest and must continue to pay the real estate taxes. The owner also retains the right to use the easement area for any purpose that does not interfere with or is inconsistent with the easement.
Use, maintenance, rights and obligations can all be written into an easement agreement or can be included in a separate agreement between the owner of the property and all easement beneficiaries.
Insurance Coverage:
Subject to their terms, all Old Republic National Title Insurance Company policies insure the policyholder against loss incurred if there is no legal access to and from the property. The enhanced coverage under Old Republic’s Homeowner’s Policy of Title Insurance provides coverage for loss incurred, not just for a lack of legal access, but loss incurred by reason of no actual vehicular and pedestrian access to and from the property.