1.08

Abutting Owners' Rights Of Access

References
See Also

5.00   Easements And Easement Insurance

4.28   Descriptions

3.28   Commitments

17.36   Residential Title Policies

1.12   Access, Right Of

1.08   Abutting Owners' Rights Of Access

Standard Exceptions

ACC   ACCESS

EAS   Easements

RRO   Railroads

VAC   Vacation

WET   Wetlands

Bulletins

NM000006   New Rules, Rates and Forms Effective May 15, 2000

NY000017   Right of Access to Highways

SC000006   Access

Forms

1.08.1

In General

The phrase "abutting owners" designates those owners of real estate whose lands touch a highway or any other public area, whereas the phrase "adjoining owners" describes two neighboring properties bordering on each other.

Generally, an abutting owner has a right of access to the public road, but the right may have been relinquished by deed, by a map or plat, or taken by condemnation. The right of access may be limited by traffic laws, such as state law regulating access to a divided highway. Property abutting a public road or highway may be the servient tract for an easement of necessity or prescription, which may be implied or established by judicial decree. Such an easement is an easement appurtenant to an adjoining, tract, the dominant tract, which is landlocked without the easement.

The ALTA Owner's and CLTA/ALTA Loan Title Insurance Policies (1970, 1987, 1990 and 1992) and the TX Owner's Policy (T-1) and the TX Mortgagee Policy T-2 insure the policyholder's right of access against loss or damage, not exceeding the amount of insurance stated in Schedule A, sustained or incurred by the insured by reason of: "... lack of a right of access to an from the land." The title policy guarantees the insured The policyholder whose property abuts a public road has a right to cross to and from his land to a legally established public way (road or highway). The abutter's right of access extends to his lessees and invitees.

The legal right of access insured under these title policies does not include assurance that the public road is physically capable of being used, nor that the public way is connected to other legally established public roads or highways. The insured right of access is not a guarantee that the access road is one of a particular type, location or width; or that the road is passable. For example, the road may be the width of a goat trail, or it may be submerged in tidal waters several times a year.

The court-established "doctrine of reasonable expectation" (hereinafter "doctrine") of the insured buyer or mortgagee expanded the insured's right of legal access; however, this "doctrine" is subject to exclusions 1 and 2 of the title policy. For property located in a downtown retail shopping district, the court held it reasonable for the insured buyer to expect the standard insured access right to include vehicular access; the court held that under the circumstances, pedestrian access was not legal access to the property. Generally, if property is located in a congested commercial area, the courts have held that pedestrian access is not legal access because the buyer reasonably contemplated automotive access. In a North Carolina case, the court held that the insured's right of access to downtown commercial property was limited by a city ordinance requiring a permit for curb cuts. The denial of curb cuts prevented the abutting owner's physical access onto the public road. The court based its decision on Exclusion 1 of the title policy that precludes coverage of loss or damage arising from post-policy government regulations. Applying the "doctrine" California courts extended title policy coverage to include ownership of title to the center line of the abutting street because the plat referenced the street name as a boundary of the property described in the policy.

The Stewart Title Guaranty Company 1997 Gold Comprehensive Protection Owner's and Loan Policies, both "west coast" and "east coast" insure the assured against loss or damage resulting from lack of a legal right of pedestrian and vehicular access. The 1998 ALTA Homeowner's Policy (applicable to 1 to 4 family dwellings) extends the access coverage to include a physical and legal right of pedestrian and vehicular access. See the underwriting guidelines connected with these five forms.

1.08.2

Possibility of Easements or Restrictions In Regard to Abutting Owner's Right of Access

Abutting property may lack direct access to the public road or highway; under these circumstances, the property may have legal access by way of an easement.

If the abutting land connects to the legally established public right of way by a recorded easement, the title to the servient tract must be searched to verify that the easement is valid and recorded, vested in the insured, and free of all encumbrances and other defects. To be valid and insurable, an access easement must be filed in the public records; and if created by grant, all parties in the title and all parties with any recorded interest, including lienholders of record must have signed the document creating the easement.

All encumbrances and defects must be disclosed as exceptions in Schedule B of the title policy. If legal access to an abutting road has been removed by condemnation or surrendered by deed or other instrument, a Schedule B exception is required to disclose the lack of access to the public street or road. For example, Schedule B Exception ACCX05 STGC is used if condemnation proceedings have taken some access rights but the land still retains a right of access from another source.

Under some circumstances, there may be recorded reciprocal access easements crossing the abutting property and the adjoining property. For example, Tract A abuts a U.S. highway, Tract B adjoins Tract A and Tract C, which abuts a state highway. The owners of Tracts A, B, and C enter into reciprocal access easements to acquire access to both the U.S. highway and the state highway. The title insurance policy issued on each servient tract is required to disclose the reciprocal easements of the other two tracts as Schedule B exceptions.

Adjoining land owners may own a recorded easement appurtenant for a right of access over the subject property or servient tract underlying the title policy. The easement appurtenant may appear on a recorded plat or may have been created by a grant deed or record. If the adjoining owner's parcel is landlocked and the only way to access any public road or way is to cross the land of the abutting owner, there is an "implied easement of necessity." These implied easements that cross the abutting owner's land are required to be disclosed as Schedule B Exceptions in the title policy insuring the owner or mortgagee of the abutting land.

1.08.3

Abutter's Right of Access---Expanding Title Insurance coverage by Endorsement

Many lenders and developers require an expansion of access rights covered under the title policy. To expand standard title policy coverage of the right of access, several endorsements may be available contingent on state law and Stewart Title underwriting requirements:

  • Endorsement insuring access to and from a named street.

  • Endorsement specifically insuring that the land has the uninterrupted right of pedestrian and vehicular access over and adjacent street or over a specifically described easement to an adjacent street.

  • CLTA Endorsement Form 103.4 specifically insuring that the easement described as Parcel (description) in Schedule A provides the owner of said estate or interest with ingress and egress to and from a public street know as (name of street).

  • CLTA Endorsement Forms 103.4 and 103.7 modified to insure actual access and public maintenance of the street.

These endorsements insure against loss or damage caused by reason of any incorrectness in the assurance which the Company hereby gives.

The general form of the endorsement insuring access to and from a names street, in substantially states:

"The company hereby insures the insured against loss or damage which the insured shall sustain by reason of the failure of the land to abut upon a physically open street known as (name of street)."

The following prerequisites are required to issue this endorsement:

  • The property does in fact abut a physically open street;
  • The owners have a legal right to use the street; and,
  • There is no gap between the land and the street.
  • If the land is unplatted, the description must tie into the street line; or
  • A survey must be furnished establishing the non-existence of the gap.

To approve the access-expanding New Mexico Form 51 "Land Abuts Street Endorsement,: Stewart Title requires (1) an inspection of the land; or (2) review of a survey; or (3) review of the description and available in-house maps to verify that the land abuts a named, physically open street.

Some developers and lenders rely on a description of the access easement in Schedule A to assure coverage of physical access, without an endorsement to assure an expanded right of physical access. Others request coverage in Schedule A in addition to an endorsement expanding access rights.

Scroll up to 1.08 to find a list of other access-expanding endorsement; go back to the MAIN MENU and click on FORMS, ALTA then CLTA, then STG, for links to these endorsements. Also under FORMS, click on the state(s) of your choice to find state-specific endorsements that expand access.

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