Before purchasing your dream property, it’s important to consider its accessibility and whether or not it will require an access easement. Failing to think about how to access a property before purchasing it can be a costly oversight and one that can be easily avoided. Here’s what to know about property access and access easements.
What Are Access Easements?
Access easements typically refer to the legal rights that grant individuals or entities the ability to access or traverse another person’s property for specific reasons or uses. These easements are used to provide passage in the form of roadways or driveways, and can also include recreational use rights such as with a hiking trail or boat launch. Access easements are usually included in property deeds or established via legal agreements between landowners.
What Does “Landlocked” Mean?
A landlocked property does not have a direct access road to it. The only way to access a landlocked property would be by traveling through a property owned by someone else. In some states, a person without property access is given the right to pass over private land surrounding their property; however, they may not disrupt the property they are using to pass in any way. In other states, you must file for legal access in the form of an easement. The property granting access is called the servient tenement while the property benefiting from the easement is called the dominant tenement.
Types of Access Easements
There are many types of easements but the two most common are easement by necessity and easement by prescription.
Easement by Prescription
An Easement by Prescription is one that is created through continued use and implication. The length of time in use is set by state law but can range from ten to twenty years in most states; the access must be continual and with the owner’s knowledge. For instance, if you owned a landlocked property and used a dirt access road that your neighbor gave you permission to use for 20 years, a new servient owner could not take away that easement since you now have an easement by prescription.
Easement by Necessity
An Easement by Necessity is an easement granted by the court because there is no other way to gain access to the dominant property, except through the servient tenement.
A Party Easement is a written agreement between both parties for the use of common boundaries or access points.
It is also important to note that there are two different easement types. An “appurtenant” easement will transfer with the ownership of the property. An “in gross” easement does not transfer with the property and will likely not be found in a title search.
Why Do Access Easements Matter?
For Lenders: Lenders look for legal, transferrable access to a property. Since they are making the loan, they want to know that access will be available in the event that a property has to be foreclosed on. Lenders will not finance a loan without legal access; this can end contracts and create smaller buyer pools. Read on to find out a bit more about this.
For Sellers: It’s tempting not to fix an access issue before selling because it does create extra work. Some sellers hope to simply reduce the price of the property, so they do not have to fix any access issues themselves. However, fixing access issues before the sale of your property can not only fetch a considerably higher price but also creates a larger buyer pool. Since lenders will not finance a loan on a property without legal access, a buyer will only be able to purchase if they are able to pay cash or owner financing is available. If an owner is unwilling or unable to finance, then the buyer pool will be reduced to only cash buyers.
For Buyers: The land you want may be a deal if it does not have legal access but since lenders won’t approve a land loan on properties without legal access, you may not be able to purchase the property at all. You’ll need to figure out if owner financing is available or look at how much cash you can afford to spend to purchase the property outright. It’s also important to know what easements are on the property you want to purchase. You’ll need to understand what rules are involved in those easements if they will transfer with the sale of the land, and where they are located. If the location of a legal easement interferes with your plans for the property you may need to find another suitable spot for those plans.
If you are unsure whether a property has legal access be sure to ask your Land Professional and the individual preparing the title for your sale.