NICE HOME…HOW DO I GET TO IT?

Winter Park Home, Volume 5 / Issue 3, 2007

One key element of land ownership often taken for granted is the ability to access the property through the public road system. Imagine buying a house as an investment, and finding out later that it does not have legal access. Imagine owning a lot situated on a road with nine other lots and later discovering that the only road, which provides the only access to a county road, is privately owned by one individual who never granted legal permission to the lot owners to use that strip of land.

I have always recommended that the Buyer obtain a title insurance policy when purchasing real property in Florida. One key component of every title policy issued since June of 1986 is a representation in the policy jacket that there is legal access to the property. (Policies prior to June 1986 did not include this language, and current policies do not insure access when there is a specific stated exception in that policy for a lack of legal access).

What is meant by legal access? It’s the right to travel from your land to a public road, without anyone being able to prevent your movement to and from that road. This does not necessarily mean that the property is situated on a public road – merely that you have the right to get to that road. Buyers sometimes mistakenly assume that a private road abutting a lot automatically entitles the lot owner to use that road. To established legal access, the property owner must have a clearly defined legal right to use a private roadway, or an ingress-egress easement, to connect to a public road.

For example, Jerry Jones owns a parcel of land that abuts Center Street (a public road) along the south edge of the parcel. That road is the only legal access to the property. Jerry then sells the northern half of the parcel to Michael Johnson, but he does not provide language in the warranty deed that permits Johnson to cross over the southern half of the parcel to access Center Street. Johnson didn’t obtain a title insurance policy when he purchased the property. Had he done so, e the policy would have addressed the access issue prior to settlement. Now, his property is landlocked and he must seek legal assistance. I advise him that Mr. Jones clearly should have granted him an easement across a portion of the southerly half to provide access to Center Street.

Fortunately, Florida law provides a way to obtain that access. Known as a common law way of necessity, the law enables Johnson to file suit against Jones to judicially establish the location and dimensions of the necessary easement. Unfortunately, it’s a process that will cost Johnson additional time and money. Before resorting to that option, we asked Jones to grant an easement across his property to permit access. Realizing that he had an obligation to provide the access, Jones allowed me to prepare an appropriate Grant of Easement for his signature. The easement provided Johnson with the right to use a 25 ft wide strip of land along the western side of Jones’ property to access the road. The easement was then recorded, placing the world on notice as to its provisions, and the problem was resolved.

Public roads, as defined by the Florida statutes, are those “roads which are open and available for use by the public and dedicated to the public use, according to law or by prescription.” They consist of the state highway system, the state park road system, the county road system, and the city street system. Much of the state highway system, although physically bordering privately owned property, may not be accessed directly by the abutting property owner. For example, land owners bordering Interstate 4 or the Greenway may be prohibited by law from directly accessing those roads except for state-mandated locations. These limited or controlled access roads do not provide the quality of practical access necessary to utilize these public highways, and other sources of access must be determined.

In Central Florida the most common form of legal access is created through platted subdivisions. Most plats now include dedication language clearly stipulating that the roadways situated within the subdivision are for public use. Since 1971, Florida Statute Sec. 177.081 (2) provides that “all streets, alleys, easements, rights-of-way, and public areas shown on such plat, unless otherwise stated” are deemed to have been dedicated to the public for those uses and purposes once the plat has been formally accepted or approved by the governing body and properly recorded. These subdivision roads then typically connect to other public roads.

Some plats, however, provide that the streets in the subdivision are private and are to be owned by the homeowners association. This concept of private ownership is readily apparent in gated communities, where the rights of access are limited by the governing board of the homeowners association. The homeowners association must then maintain the platted roads, without assistance from the city or county, and pay any tax bills associated with that private ownership.

Land surveys should always depict the location of the nearest public roadway. It is incumbent on the title company and the closing agent to review the public record to determine that there is, indeed, legal access. They also need to review the survey to ascertain the location of that legal access, and ensure that nothing is blocking normal use of that access.

The definition of legal access doesn’t address the quality of access-only that the right exists. For instance, if property is acquired with a 25-foot wide ingress-egress easement but the easement is littered with trees and boulders, there will still be legal, if not practical, access. A prospective property owner should always consult with a real estate attorney before the closing to resolve any question concerning the validity of the legal access. It is always easier, less expensive, and faster to address all issues before, rather than after, the closing has taken place.

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Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.