Title policies include an insuring provision which covers the insured for loss resulting from a ‘lack of a right of access to and from the land’. Access directly affects the use and marketability of real property. Access to the insured land is always over some land other than the insured land. It may be provided by a dedicated street, a legally created easement or another specifically granted right. If a publicly dedicated street or highway abuts the insured land and the ability to cross between the two parcels is not restricted, then the insured land would have access. Access means the ability of the owner to get to the land.
The access provision in the commitment and policy relates to the existence of a legal right of access not physical access. A title insurance policy does not insure the physical usability, existence or characteristics of a means of access. Also, a policy does not insure a particular means of access. It merely insures that a valid, legal right of access exists. However, the type of physical access to the property must meet the standard of being reasonable. Access to a home with a garage would be the legal ability to walk or drive to the insured land. Access to the top floor unit of a condominium would probably mean only walking access and would not include the right to drive an automobile to the door of the condominium unit. Accordingly, each property must be reviewed to determine what would constitute reasonable access.
If the insured land abuts only private land, then access is restricted. Driveways and, in some cases, private roads do not necessarily constitute legal access. Such access rights must be evidenced by a written, recorded easement and access should not be insured unless the access is shown a written and recorded easement. A private easement should be considered a separate tract of property which abuts the subject property in an amount (width) sufficient to provide physical (vehicular, if appropriate) access from the insured land to a public roadway. Occasionally, a small gap or gore may separate a lot or parcel from a public roadway. In these instances it may be necessary for the municipality, county, or state to abandon title to that portion of property separating the insured parcel and the road.
Whenever access of the insured land to a public roadway is restricted, limited or does not exist, an exception to lack of access must be noted. The terms and conditions of any easement providing access must be shown as an exception on Schedule B.