ACCESS TO PUBLIC AND PRIVATE WAYS
All ALTA policies affirmatively insure against a "lack of a right of access to and from
the land. This access may be in the form of a highway, dedicated street, deeded
street, private road or private easement. If access is by means of a private road or private easement, the applicant should be contacted to determine whether or not he or she wants the access over
the private easement or road insured. This coverage would most likely involve additional searching time and expense to determine that the private rights were properly granted and are not encumbered.
If insured access to and from the property is by means of a private road or private easement, an additional exception must be taken for the rights of others in and to that private road or private easement. The exception should read as follows:
"Rights of others in and to __________ Road, a private way."
Likewise, if access to and from the property contains limitations, an exception for these limitations must be noted on Schedule B of the policy. If access over a private road or easement cannot be insured and there is no right of access across dedicated public ways, an exception for the lack of access must be included in Schedule B.
The exception should read as follows:
"Lack of a right of access to and from the premises described in Schedule A above.
Note: Insuring Provision No. 4 contained on the cover of this policy, which reads "lack of a right of access to and from the land," is hereby deleted."
This Note should be included in Schedule B of the policy in order to clarify to the insured that access is not being insured. If you are using any title policy jacket other than the 1992 ALTA form, please confirm that the right of access is in fact contained in Insuring Provision No. 4.
Beware of limited or controlled access where the insured property abuts an interstate highway or other major artery. Treat these situations as if there is no legal access and include the exception and Note listed above. Even though the property physically abuts such a public way, access may be impossible.
Developers have also been known to sell recreational parcels in mountain or forest areas remote from existing state, county or town roads. When dealing with such lands, make certain at the outset that the property can be reached over dedicated public roads or valid private easements as referred to above. If not, the exception and Note shown above must be included in the policy and the insured should be made aware of this exception to coverage.
Occasionally, a situation arises in which there is no legal right of access to the property. There is, however, a prescriptive easement or interest through which owners of the insured parcel have been obtaining access for many years. Such access is generally uninsurable. The local office, however, should be contacted to confirm whether coverage can be provided.
As you can see, the issue of access is a complicated matter to which most agents give little thought. In nine out of ten cases, there is no question as to the legal right of access. When access does become an issue and cannot be established as a legal right, please contact the local office. Under no circumstances should a parcel be insured that does not contain a legal right of access without direct approval of the local office.