This blog attempts to take a very complex legal situation, simplify it, and then provide two practical solutions to guide a general audience. There are many ways to solve the issue of Legal Access and countless additional issues that may arise by not doing it properly or not understanding particular nuances of local laws. Nothing in this blog should be used in place of actual legal advice. Please contact an attorney if you have any real property issues.   

When a private consumer buys a piece of property it is easy for them to assume they have legal access to the property because they have driven up a driveway or a road to view it. Simple enough, right? If you are physically able to access the property then legal access must exist. Sadly, that is not always the case. Actual access does NOT guarantee legal access to a property. 

Besides the obvious desire to be able to get to the land you own, not having legal access can be detrimental to the value of your land, the marketability of your land, and your ability to get fully covered Title Insurance. So it is always advisable to fix legal access issues. 

This problem of legal access can arise in many ways. Here are some examples: 

  • Owners don’t realize an access road is private and owned by the neighbors until they go to sell the land; 
  • Mountain roads or field roads which are well-maintained and maybe even used by some locals are actually privately owned and not publicly owned; 
  • Neighbors sell their land and then the new owners find out they own the access road to your property and make trouble for you; or
  • A large tract of land gets cut up over time and, through no one’s fault, certain tracts are left without legal access to a public road. 

Let’s use the last example: someone owns a large tract of land that has 4 roads surrounding it. Over the years this individual creates many dirt and gravel roads to help them get around the large piece of land. Over time, this person decides to start selling off the land because they no longer need such a large tract. The land owner is not a trained developer, so they allow buyers to influence them on how much of the land they buy at a time. This leads to different sized portions being sold, and ultimately different shapes being created to fit the mutual desires of the parties. Ultimately, something like this could be created: 

landlocked property

As you can see, all the lots except Lot 4 touch a public road. Therefore these lots will all be considered to have legal access whether or not a driveway exists. Lot 4, however, is landlocked; it is not touching a public road and, from what we currently know, does not have legal access to a road. 

Our first recommendation for any real estate dispute is to discuss the situation with your neighbors and find a mutually beneficial solution. It will save all parties time and money to avoid court and will generally make for happier neighbors. Here are some potential solutions that could help neighbors solve this access problem: 


Potential Solution One: Purchase additional land

The obvious solution is that the owner of Lot 4 can purchase land to connect the lot to a public road. Seeing as how Lot 4 is closest to Desert Road, and Lot 6 is the smallest neighboring Lot, the Owner of Lot 4 may consider offering to buy Lot 6. Then the owner of Lot 4 could combine the two lots into one large lot. 

Alternatively, a dirt/gravel road may already exist that extends from Carrot Road across Lot 7 and onto Lot 4. The owner of Lot 7 may therefore be incentivized to sell this small sliver of land to the owner of Lot 4 because it is already unused by the owner of Lot 7. Other lots on the map that may have already been designed to avoid this problem are Lots 6 and 8 (These are known as “Flag Lots” due to their unusual shape and oftentimes have local ordinances or rules regulating them). In these cases a small sliver of land attaches a larger portion of land to a public road so that the property may create a driveway or private road to access their land. 

There are seemingly endless examples on how the owner of Lot 4 can purchase land to connect Lot 4 to a public road. So let’s move on to the next solution. 


Potential Solution Two: Get a private express easement 

First off, an easement is a property right to use but not possess/own a particular section of land. The most common type of easement is one for ingress and egress, which in simpler terms is the right to move across the property. For the sake of this post, the easements discussed herein run with (or attach to) the land and are not limited to a particular party/owner’s life. 

So for the sake of our example, if the owner of Lot 4 finds that none of the neighbors want to sell their land, then another solution is to get a neighbor, like Lot 7, to agree to an easement. This allows the Lot 7 owner to retain ownership of the land while also restricting how the owner of Lot 4 uses the property. In our case, the owner of Lot 7 would be limiting the owner of Lot 4 to a specific purpose – traveling across their land to get to Lot 4.  

In addition to the easement, these property owners may also want to discuss upkeep for the land and potential maintenance for the road that exists there. This protects the owner of Lot 4 just as much as it protects the owner of Lot 7. Remember, the owner of Lot 4 only has the right to move across the land, not improve the land or make changes as they see fit. That right falls to the actual landowner. So having a written agreement can allow both parties to move forward comfortably. 

In rare cases, your neighbor may refuse to sell you land or grant you an easement. In this situation you could pursue an easement by necessity, but this type of easement is complicated, requires all parties to go to court, and historically judges have been hesitant to grant it.

As I mentioned before, easements are considered a property right and as such should always be properly drafted and recorded in your local probate office by an attorney. 

In conclusion, there are many ways to solve the issue of legal access, but these are generally two very good options. Contact our office for any additional questions and further guidance.

By: Geoffrey K. Middleton
Attorney at Law
Huntsville, Alabama
Written in 2020