EZ Access

We often take getting into our driveways for granted. In most places, homes generally front roads owned and maintained by the local municipality. However, on our island, easements and flag lots are very common.

What Is an Easement?

An easement is a straightforward arrangement where one landowner allows another to cross their property, either for ingress and egress or to bring in utilities. Affected landowners must formally agree, and a legal document describing the agreement should be filed with the Bureau of Conveyances. Otherwise, a subsequent or disgruntled landowner could revoke the use.

Easements may also be created by legal action through habitual or prescriptive use. They are generally said to be “appurtenant” or to “run with the land,” meaning they pass to subsequent owners. This differs from Easements in Gross, which are individual rights typically granted to utility companies. In some cases, Easements in Gross are granted to individuals. When this happens, the easement is extinguished with an event such as the death of the grantee or beneficiary. The land area of the easement still belongs to the grantor.

What Is a Flag Lot?

A “flag” lot might look like an easement on the ground, but the portion of the property connecting the roadway to the lot is actually part of the lot itself and is included in the total land area. Flag lots are created during subdivision and are usually shown on tax maps. However, tax maps are not always the most reliable for determining access, as they are not redrawn with every change.

The legal description of the property is the only reliable method of determining access. Although survey maps should note easements, they often may not because easements are usually necessary but not part of the property. Easements should always be noted in the title report. There should be a notation of “together with” or “subject to” on the encumbered property. I always recommend requesting a title report for the encumbered or subject property as well.

The Complexity of Access

Properties fronting public roadways may not specifically address access. However, access can sometimes be extremely complicated, involving a group of easements or a combination of public roads, easements, and flag poles. It’s always a good idea to have an attorney verify that your access is fully and legally noted in public records.

A Word of Caution About Paper Roads

A final word of caution relates to “paper” roads. Title policies are written based on recorded access, which may not physically exist on the ground. Before you buy, be sure that a road actually exists.

Whether your access is through pastures and gates, down streambeds, along shared roadways, or just a simple right turn off a public road, access may not always be easy—but it’s critical to finding your way home!