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Understanding Road Access

By Tom Brickman on July 19, 2013

Many people ask us what the consequence is when a property they have an interest in buying does not touch on a public road (in Alabama, many properties fall into this category).

In other words, when the only access to a property from the nearest public road (that is, a road maintained by federal, state or county government) is a private road or trail that crosses adjoining landowners. Or, there is no road at all to the property.

In general, access falls into three legal categories: one is public access, one is un-deeded access and one is deeded access.

Public access is the least complicated. It touches a government maintained road or it doesn’t. If it does, you don’t have to cross anyone else to get to your property.

The other two are more complicated. But even un-deeded may not actually be a problem – depending on the intended use.

What does un-deeded mean?
Un-deeded access means that your use of a road or trail across an adjoining landowner to get to your property is not governed by a written document (or, there is no road at all). This is commonly called a “landlocked” property. It’s the road people “have always used” to get to the property, but a written agreement was never negotiated with the neighbor.

When an access is “deeded”, there is a written agreement with the adjoining landowners over whom the road traverses that governs use of the road. It’s typically recorded in the court house.

Does it matter?
Our experience is that for some uses of the land, un-deeded access is usually not a problem since the use of the road is often uncontested and goes back several generations. But from time to time these situations can be problematic since the adjoining landowner is not bound by any written agreement.

The state of Alabama has a law that says you can’t “land lock” your neighbor. That is, deny them physical access. But this does not mean they have to give you a written easement, and it does not mean they have to let you string power lines or run water lines across their property.

Un-deeded access can be a problem when borrowed capital is used to buy land. Lenders often will not lend money when the intended security interest is “land locked”.

Access depends on intended use.
If you are looking at Alabama land for sale that does not touch on a public road, then how you intend to use the property is key to understanding the issue. For example, if you intend to build a house and will need water and utilities, then having “deeded access” will be critical. You’ll have to negotiate these things with your neighbor.

On the other hand, if you are buying hunting land or want to grow timber and 4-wheel with the kids, our experience is the risk is small you’ll have a problem with a neighbor when the access road is well established and it’s use has not been a point of contention with the neighbor.

In general, the more landowners who use an un-deeded access road to get to their property, the less likely there will be trouble with the adjoining landowner.

How can Cyprus Partners help with deeded access?
If having deeded access is critical to your purchase, the best way to proceed is to negotiate a contract with the seller of the “land locked” property that contains a contingency for successfully negotiating a written access agreement with the adjoining landowners. This way if you can’t resolve the issue to your satisfaction you’ll get your deposit back. And meanwhile, you have the property tied up so it can’t sell before you have a chance to solve the issue.

Cyprus Partners has connections with local attorneys with experience in deeded access cases. We can help you get in touch with the right firm for your needs, and move you towards purchasing the land of your dreams. It may cost you some money to get the deeded access (payment to adjoining landowner, survey cost, attorney fees, recording fees) but it is money well spent.

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FAQs

Are there width requirements regarding deeded row?

There are no requirements regarding the width of a deeded right of way. It is common for them to be between 15 feet and 50 feet.

I am trying to get city water on my land. The county stated that the county road doesn’t have a right-a-way. Do I need my neighbor’s permission to run a water line on his property?

If the road is not legally dedicated to public use, then it may be private regardless of whether or not lots of people use the road. In this case you’ll have to negotiate the right to put a water line across private property. We recommend an attorney.

Can I prevent landowners with shared road access from crossing with road restricted vehicles such as ATV’s and dirt bikes?

This question is best answered by a lawyer that knows the details of your access.

My neighbor just poured a new driveway and when he exits his new driveway he crosses through the corner of my property. Does he have the right to cut across this when he has 90 feet of frontage to get to the road?

It’s always a good idea to defend your boundaries. Consult with your attorney about the best way to do this.

23 thoughts on “Understanding Road Access

  1. I recently bought property and there is an old county road 1162 that has been the access for at least three generations. Land that is between my land and the public road was recently purchased by another. His contention is that will allow me access to my land but requires restrictions of use of land that has been used for access for the other two land owners that have used that access for over fifty years. I understand prescriptive easements but wonder how he can allow one land owner access but restrict the other two land owners access of the only access to their land locked property? To protect myself and these other landowners, should I seek to gain a deeded easement for me and does the new landowner have an obligation to give me one?

    • Larry,

      My first advice is to find an experienced real estate lawyer to advise you.

      But, I can tell you that my experience is it’s always a good idea to try and get a written deeded access from a neighbor when you don’t have it.

      But it’s also my understanding that an adjoining landowner is under no legal obligation to give this to you. He’s not denying you physical access. And giving you written, deeded access is different than giving you physical access. Written access is a larger encumbrance on his land than your unwritten right to use the road based on decades of precedence.

      My dad always said to be careful with the fights you pick. So it’s up to you whether you go to bat for the other landowners, or let them carry their own freight.

      I’d also advise you to tread light with the neighbor. You have physical access. Get it in writing if you can. Fight if you must to protect your physical access. But at the end of the day you have physical access to your land, and there is nothing worse than on-going conflict with a neighbor.

  2. dear mr. brickman, I am owner of a small business located on state hwy. 206 in Hampton, NJ. NJDOT wants to close my access on the state road because they believe I have alternate access located on the adjoining land owner’s property and an easement to a private right of way. I have been unable to find a real estate lawyer. any help will be greatly appreciated. thank you.

    • Sharon,

      There are no requirements regarding the width of a deeded right of way. It’s just a matter of what you can negotiate with your neighbor. It is common for them to be between 15 feet and 50 feet. My experience is that many Alabama counties require a 50 foot right of way for a road that will be dedicated to public use (for example, a road that goes to a future subdivision).

      Tom

  3. I just bought a property with a windmill road on it. The road is to get to the wind mill not sure why the road goes through my property but it does. They could have run the road on the windmill owners land what’s my rights

    • Dwight, Your options depend on the nature of the road-use agreement negotiated by the previous owner with the wind mill company. If an agreement exist, the title policy you obtained when you bought the property should have identified the agreement. If it exist and was not identified by the title company, you may have recourse with the title company. If you did not buy a title policy, or if a road-use agreement with the previous owner does not exist, then you won’t have recourse with the title company. Either way, you may be able to renegotiate the road location with the company that owns the wind mill. As in all things legal, be sure to consult with your attorney before taking any action.

  4. TOM,
    I do not see anything in my Deed or Title that mentions the use of the land buy the wind mill company. Or an agreement to allow them to use the land for their road. They just used the land because it was abended mine land.

  5. I have a question. I have land that I am trying to get city water to. The water meter is in one county and the water line will be run in another county. The county that connects the meter is happy to do so. However, the county were my water line will be has stated that the county road doesn’t have a right-a-way or easement, and they have suggested that I contact the neighbor to get permission to run my water line on his property since the road doesn’t have an easement. Everyone on the road has water except for me. I don’t believe the neighbor will give me permission. What can I do if he says no. Also, it is my understanding the only kind of water I can get from a well would be sulfer.

    • If the road to your property is not LEGALLY dedicated to public use, then the road may be private regardless of whether or not lots of people use the road. If this is the case then you’ll have to negotiate the right to put a water line across private property. I’d suggest you check your title policy obtained when you purchased your property to see if there is any indication one way or the other. In you did not obtain a title policy, then you can get a title exam performed on your neighbors property. And, I’d get a lawyer to determine if your neighbor has a right to deny you the right to bring water to your property, or if there is some way around it. Good luck

  6. 10 years ago, my wife’s aunt was sold an acre of land behind me. My driveway was her access to the land. This was owned by my in-laws but now I own that land.

    The aunt sold to some people and they have since used the same access. I’ve never deprived them the use or given them permission. They are constantly riding 4 wheelers and dirt bikes on it. I’ve even had to make them leave the property twice and they were just parked behind my cars on the road.

    1. Can I move the access to their property further down my property so they don’t share my driveway?

    2. Can I prevent them from crossing with road restricted vehicles such as dirt bikes and 4 wheelers?

  7. I live on a private road and everyone has at least 90 ft of frontage onto this private road. My neighbor just poured a new driveway and when he exits his new driveway he crosses through the corner of my property. This corner is very close to the private gravel road. Does he have the right to cut across this when he has 90 ft of frontage to get to the road? Under normal circumstances this would be ok with me but since we moved here a year ago, he is always staking his property lines so nobody thinks about trespassing onto his property.

  8. We are looking to buy some property in Alabama. The road to the property is a dirt road that the county maintains and is labeled a county road (blue county road sign). The property starts about a quarter mile down the dirt road. As part of the due diligence, all the pins were to be marked. A surveyor just completed the pin markings and all are either in the middle of this county road or are on the opposite side of the road showing most of the road within our property lines. There is more property passed our property this uses this road for access. The road ends about a tenth of a mile passed where our property line is where an old covered bridge used to connect to another county road but no longer does. If the county maintains this road, what impact does this have on our property and our rights since the property lines literally run down the center of the road and in some places is fully on the property? I have not been able to locate any deeded road information or easements for the county road.

    • We would like for the county to continue maintaining the road, we just want to know what impact this may have on our property.

    • It sounds like the road across your property is dedicated to public use and maintained by the county. In this case, you may own the dirt under the road, but but the road location is likely an “encumbrance” on your property where use of the road is not controlled by you.

      This dedication to public use may be formal and recorded in the courthouse (I know you say you could not find this), or it may be “prescriptive” due to it’s continued and uninterrupted use over many years (laws vary by state).

      Check your title insurance. Typically a title policy will identify public roads and rights-of-ways across a property as an exception to their coverage.

      If you did not buy title insurance, you might have the title examined by a professional and share the results with your attorney. Since no one uses the road past you, you might be able to petition the county to officially abandon the road. This would let you put up a gate.

      Good luck.

  9. I have had a deed for over 20 years and it is stated that a public road as being part of my boundary. My brother wants to widen the road so two brush and or dump trucks can pass on that road. Does he have that right to come on my property to do that and how can I establish my land line so I can put up no trespassing signs so he doesn’t continue coming further into my land.

    • John,

      You need a lawyer, a surveyor and a new brother.

      But, my experience is that public roads have boundaries that are precisely defined in public documents. These boundaries can be surveyed. If your deed defines your land as beginning at this boundary, then any attempt to trespass over this boundary should be defensible in a court of law.

      Good luck.

  10. We live on a private road designated as a ROW since 1944. The issue is that many houses and lots have exchanged hands over the decades since. Deeds have lost the reference to the ROW and shared maintenance. So now new home owners since original deeds, do not pay into the road association. There are 3 dirt roads. How do I find out the liability and requirements of all lot and home owners to pay into the maintenance and repair of all of the roads, as initially set forth in the deeds, and as set forth in a revocable trust of the owners of the ROW, as well as development requirements in the rural town in NH. Thank you. I just want to create peace and good neighbors. A lot of different opinions

  11. I have a question if there’s not deeded easement who has to maintain the field road goin into the land locked property thanks

    • Scott,

      No one is required to.

      As a practical matter, most landowners allowing another landowner to cross them will also let that landowner provide maintenance to the road if they want to. But you will be wise to communicate ahead of time with the person over whose land you must travel to get to your land to discuss maintenance plans.

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