A Montana couple bought a rear lot in 2006 in a rural subdivision. They were aware at the time of the closing that the access to their lot was by way of a "road" that crossed over the two adjacent lots to get to the country road serving the area. They did buy at the closing, an owner's title insurance policy from Chicago Title Insurance Company. One of the standard items that an owner's title insurance policy insures is that the insured property has "a right of access".
The subdivision in which the couple bought their lot was developed in 1988, 
and the developer recorded a "Declaration of Easements". This document indicated that all lots in the subdivision would have access by way of a non-exclusive easement and right of way that was 60 feet in width. The document further indicated that certain easements had not been determined and the developer reserved the right to determine the location of future easements for access.
In 2013, without any change in circumstances, the couple filed suit against Chicago Title claiming that they did not have "legal right" of access to their lot, notwithstanding the "road" over the two adjacent lots. The couple further stated that their title was unmarketable by reason of the lack of access. The couple was attempting to make a distinction between "legal access" and a "right of access" that was insured by their title insurance policy. Their attorney argued that, "to have legal access to property, there needs to be some piece of paper of record that provides access". The couple argued that there was nothing that provided them with access to their lot, other than a "goat path", and that was not "legal access" in their opinion. They further indicated that if they had realized in 2006 when they bought the lot that there access was by way of the "road" over the adjacent lots, they would not have bought their lot.
The court indicated that there was no distinction between "legal access" and a "right of access". The Court further indicated that when a declaration of easement does not specify the location of an easement the court will "deem" an existing road to be the right of way and that the court may otherwise establish the details of the easement by the use made of it. An easement need not always be created by a written document that contains a precise description.
In more recent times, local planning and zoning agencies of state and local governments have tightened their requirements for easements in subdivisions. Public street dedication is favored over private rights of way, and "rear lots" will always be an exception. Access for those parcels will be by way of an easement over adjacent lots more often than not. If nothing else, that easement will most likely appear on the subdivision map.
People purchasing lots in a subdivision (especially rear lots) need to have all documents and maps relating to the subdivision examined and explained to them by a qualified professional. The couple in the lawsuit mentioned apparently missed something along the line. The court did not allow their claim and ruled in favor of the title insurance company. The case was decided by the Montana Supreme Court, and is entitled James v. Chicago Title.
Image courtesy of state-engineering.com
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