Occasionally, when searching for investment property you come across a parcel of land that is landlocked. Landlocked is a term used when a property actually has no legal easement or recorded document that describes in writing the way to access land that does not front a public road or street. It is usually a parcel of land that is surrounded by land owned by others on all sides and cannot be reached without a dedicated access road. One of the most common questions asked about landlocked land is how did it become landlocked in the first place and what are the remedies to fix the problem?
The Sit Back and Wait Approach
Many property investors take the sit back and wait approach. If you purchased the property at a fair and reasonable price and are prepared to wait for progress to catch up… in most cases access to land that is landlocked now will become available in the future. So, if there is no rush to use this land and you are prepared to just wait; in most cases your land will become accessible in due time. Just imagine purchasing a parcel of land with no access for a very good price. Several years later the county decides to build roads and power lines to your property and even changes your zoning so you can now subdivide your property and sell off the individual parcels at a huge profit.
Purchasing an Easement
The simplest course of action is to attempt to buy or obtain a written easement from the current landowner holding the property leading to the road you would like to access. This will require a surveyed legal description with the location of the new easement and the signed notarized approval of the landowner of the land the easement crosses.
Buy the Neighborhood
If there are one or several properties preventing you from gaining access to your property you can make an offer to purchase these properties that are keeping you from accessing your land. This is the best way to secure an easement and increase your property size and value instantaneously. You can easily do a records search with the county assessor to find out who owns the property adjacent to yours and contact the owner about selling.
What Does the Law Say?
If none of the above methods work to secure you an easement to your property in some states the law may provide remedies that would allow you to get an easement regardless. Since the “Powers that Be” realize that land without access is of little use or value to anyone, the law provides certain means by which access can be established to property that does not front a public right‐of‐way and has exhausted all avenues by which to obtain an easement.
Implied easements are easements that the law implies where otherwise there would be no access to the property. These are also commonly referred to as easements by necessity. These easements are “implied” by the law under certain circumstances. The general categories of these implied easements are easements by implied grant, implied reservation, or implied by prior use.
Easement of Necessity by Implied Grant
The easement of necessity by implied grant operates under the principle that when one conveys property, one intends to convey all that is necessary for the reasonable use and enjoyment of the property. Otherwise, the grant would be useless. In order to establish this type of easement one would need to prove; 1) that one’s property is without access to a public right‐of‐way (necessity); 2) that one’s property was at one time part of a larger parcel which had access (most commonly frontage) to a public road; and 3) that the property through which one seeks to establish an easement was once part of that same larger parcel.
Easement of Necessity by Implied Reservation
The easement of necessity by implied reservation is similar to the easement of necessity by implied grant only insofar as the property must at one time have been part of a larger parcel, a portion of which access is now sought to be established. The principles operating for this type of easement are entirely different than those of the preceding one. Where the easement by implied grant operates under the principle that the grantor intends to pass along everything necessary to the use of the property being conveyed, the easement by implied reservation involves the opposite considerations. Here the circumstances involve the grantor retaining a parcel which is land‐locked and conveying a parcel which has access. The principal that forms the basis for the easement by implied grant – that the grantor cannot negate his own grant – clearly does not apply to this situation. In fact, the very opposite considerations apply. In order for there to be established access the effect would be that the grantor would be negating the grant to some extent.
Since the principles are radically different, so too are the elements that must be proven. Not only must unity of title (that the current parcel was at one time part of a larger parcel which had access) be established but one must also show; 1) that at the time of the severance (division from the larger parcel) there was in existence a road or way of access; and 2) that this way was and continued to be in use. The basic principle here is that there is notice to all that there is an appurtenance (attribute) of the property in the form of a road.
Another way to establish access to property is by means of a prescriptive easement. A prescriptive easement operates under the presumption of a grant that arises after a long, continuous, adverse, open use of a right‐of‐way over someone else’s property. The benefit of this type of easement is that it is not limited to lands which were formerly part of the same grant. The disadvantage is that it is usually not that common. In Virginia, the period of time that the road must have been openly and adversely used is 15 years. Sometimes there may be the proper period of use, but the use may have been permissive. A common example of this is where the owner of the land has given permission to use the road. If that occurs, then the running of the statutory fifteen year period is tolled. Another circumstance which may affect the claim is where the user of the road mistakenly believed he had the right to use the road. There is some authority in Virginia that such intent may fail to satisfy the requirement that the use be “hostile.”
Seek Legal Advice
If all else fails, you can hire an attorney to assist you in gaining access to your property. Just remember that attorneys aren’t cheap and usually charge by the hour, so you can save yourself a lot of money by doing most of the legwork yourself. Some of it may require going down to the county and looking through the past property records or visiting the property and looking for physical clues of a past right-of-way.
Physical Clues of Past Easement
The most important physical characteristic is, not surprisingly, the existence of a road that connects the property to a public right of locked property used the road to access the property. Was the road in existence at the time the subject property was parceled out of a larger tract? What other parcels does the road traverse on its way to a public highway? Other “on the ground” facts to investigate include whether there were improvements on the parcel. Sometimes there may be remnants of a dwelling that was once occupied. Obviously, if there was a dwelling on the property the people who lived there must have accessed it somehow. If the remnants of an old dwelling can be located, then gathering information from long time residents may be helpful. Such information would include who occupied the dwelling, when it was last occupied, and how did they access the public road. One is not limited to actual physical inspection of the property as the only means to determine whether there was previously a road or improvements on the property. Some local government departments (e.g., real property taxation) have, in the past, used aerial photographs of properties in their jurisdiction, typically for their tax maps. Those photos/tax maps may be viewable and sometimes they may show a dwelling or road that is either no longer visible, or difficult to locate without some help. Many properties without road frontage or deeded access have old roads that connect them physically to a public right of way. Sometimes these roads have been out of use for many years and are largely overgrown and in disrepair. If there is evidence on the ground of a road or pathway, then additional information concerning the road should be obtained. Typically this information is derived from persons, generally elders, who have knowledge of the history of the property.
There are a number of means by which one can establish access to property that appears to be landlocked. Each involves its own particular facts and legal principles. Either take a do it yourself approach or with the help of competent legal counsel and under the proper circumstances access should be granted; which will make a considerable difference in the value of property most likely offsetting any costs involved.
Land locking usually does not happen today as it had in the past times. This is because our current subdivision laws do a good job of requiring surveys to be completed whenever land is being divided. This is done to ensure that every parcel has legal access on every legally plated lot or tract of land. Additionally, most land sold today also has a title search completed by a title company, which will verify the access when a search is ordered. If you plan to purchase land that is not currently surveyed, it is always advisable to obtain a survey prior to closing even if it has roadway frontage, thus insuring that it really does have legal access.
The best thing to do in any situation where you think that your land may be landlocked is to call the county planner or town planner and do a title search to see if any consent had been made in the event of such a situation arising.