How Important is Access?

In our first issue of Larry Smith-Vaniz Realty Land & Hunting Reports, we mentioned several “consideration issues” one might want to think about during the process of deciding whether to buy land and in determining what specific tract to buy. “Location” was mentioned first, and somewhere down in the list was “access”.

Practically all real estate savvy people, if asked what the most important considerationshould be when considering a land purchase, will tell you “location, location, location”! As a general rule we agree, but what’s next? Title? Size? Purchase Price? Operating Costs? Topography? Access? And the list goes on. All of the above are important, but in this article we are going to consider “access”.

What is access? The term generally refers to rights of ingress (the legal right to enter a property) and egress (the legal right to leave a property) through the property of another person.

When a property has frontage on a public road with a driveway connecting to the public road, access is pretty much a given. However, when a property does not have legal access, access becomes a primary consideration for a buyer who does not want to end up with what is commonly referenced as a “landlocked” property.

When a property does not have legal access there are a few basic options to address the issue:

Buy land which connects the landlocked property to a public road; or,
Buy an easement which connects the landlocked property to a public road; or,
File a petition for “private way” in the appropriate court.
Dealing with landlocked property can be a difficult and costly situation to overcome. In order to buy land to provide access , the landowner you wish to buy from has to be willing to sell you the land you need. Additionally, the landlocked property owner has to be willing and able to buy the needed land. One might be willing, but not able, to purchase the needed land. Another significant factor is that the landowner you need to buy from usually knows that you have to have the land in order to gain legal access. “Have to have” generally means the price goes up dramatically if the owner will even consider selling.

The second alternative is to buy an easement from the landowner(s) situated between the landlocked property and the public road. “Buy and easement” sounds simple enough, but it is a rare landowner who is willing to give or sell another person a right to come and go through his or her property. An easement typically makes the property of the person granting the easement less valuable as the person giving/selling the easement has given up a right regarding his or her own land. On top of the reduction in value of the land belonging to the seller of the easement, having someone who has the right, at will, to go in and out of one’s property can be a real nuisance. The bottom line is that getting someone to give or sell an easement for ingress and egress can be, and often is, an extremely difficult goal to attain.

The third alternative is to file a petition in the appropriate court to have a “private way” established. That also sounds fairly simple, but obtaining access through the courts should, in our judgment, be an action of last resort. First, you are relying on someone else to determine what rights you will get and what access restrictions you will have to deal with going forward. Additionally, you will have to buy the easement and there are generally legal fees, court costs and other expenses involved.

We are aware of two situations where persons filed petitions for a private way (under a former statute) with the County Board of Supervisors. In one instance, the petitioner spent over $75,000.00 in legal fees and costs, plus paid the price of the easement as determined by the Board, appraiser’s fees plus other fees and costs, in order to obtain legal access to their lands. In one of these situations, the landowner over whose property the access was sought spent a similar sum.

As real estate brokers, we have heard it said on many occasions that access is not a big deal because every landowner has a legal right to access. While that is generally true, such access is not free, plus it can take months or even years and cost a bundle to enforce your rights to access. Just because a landowner is entitled to access does not make it a given that he can pay the price to get it. Even if he can afford it, he might not feel that is feasible to pay the costs and/or go through the agony of dealing with the legal process required to obtain it.

The above is a simplified overview of issues related to access. However access is not a simple issue, and it is a necessary item for one to consider before buying a given tract of land. Our advice to any potential buyer who is considering the acquisition of a landlocked property is consult his/her attorney and work out the access issues before buying the land. To do otherwise is risking the possibility of being locked out of one’s own property.

Finally, remember that when dealing with land, things must be in writing, and they should be signed, notarized and recorded in the land records of the county in which the land is located. Additionally, avoid the urge to assume anything. If a right is not spelled out in an easement, you probably don’t have it.

In a future report, we will discuss easements in general as solutions to the problem of lack of legal access and give some direction as to points to consider.