By: Merideth Nagel, Esq.
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What are Access Issues?
Believe it or not, access issues come up on a lot of files when we’re trying to close. We would say probably around 10% or more of our closings run into an access issue of some kind, so it’s a common problem and you need to understand how it affects your files.
First and foremost, when you get that title commitment, make sure that there is no exception for access. This is going to be the first indication that you have an access issue on the file. It means that the title company has examined the records and they have some questions about whether you have access to the property or not. If you haven’t gotten the commitment in time, your client may not even know they have a problem until they show up for closing. Yikes! If you have any questions about where you can find an exception for access on the commitment or how to read it, check out our other video that explains all about the title commitment here.
The second way you find out that you have an access issue is via survey, which will indicate whether or not there is access to the property line.
Now, the question is, what do you do when you find out there IS an access issue? Luckily, in both instances, the way you solve the problem is the same.
The first thing you have to do is figure out how people are currently accessing the property. Most of the time when you find out there is an access problem, you already know that there is a road people are using to get there. You may even drive on it when you go to show your clients the home initially. It will only be later that you find out that the road being used is not a public road and that people don’t have legal access to use it.
A lot of realtors mistakenly believe that if a road has a name it must be public and thus, everyone has legal access to use it. This is a myth! There are a lot of private roadways throughout Central Florida that have been named because the state needs to have an address for the people that live there, they need to be able to direct emergency personnel in case of a 911 call, or because they need a way to deliver mail. A name is not an indication that the road is public.
If you have a question about whether or not the road being used to access a property is county or city-maintained road, call them. There is a road department that can look up the road you are using and tell you whether or not it is public.
If it’s not a public road, you have to figure out a way to legally access it. The easiest way to do that is to get an easement. That is a legal document that gives your folks the right to travel across someone else’s property to get to their own. Getting an easement is always the best way to solve the problem but it’s not always possible.
Another way to gain access is by a road maintenance agreement. Sometimes many people will be using the same dirt road, none of whom have access, and one of the things we do is put together an agreement stating that all home owners recognize there is a road that travels across their property and everyone that uses it will do what they can to maintain it for this use. That’s the road maintenance agreement.
Now, before, we briefly mentioned the survey. The need for a survey is something that our company is very passionate about. We are always disappointed to see that a realtor is recommending that their client not get a survey in order to avoid the extra fee because it is sometimes the only way to know if there is an issue with access. If you’re going to spend $250,000 on a house, you should spend the $400 so you know that there are no problems or surprises.
Another common myth here is that if you’re in a platted subdivision, you don’t need a survey. We have had access problems in these subdivisions as well, including one where we found out an easement ran right through the middle of a client’s home. The survey is important!
If you are concerned there may be access issues once you visit a property, inquire around the area. Ask the neighbors. Call the county or the city and find out if it’s a public road. Also remember to pay very close attention to the title commitment.
If it turns out that your file does have access issues, your only choice at that point is to turn to a real estate lawyer and get them to help you resolve it through the means mentioned above. Whatever you do, just don’t get discouraged. In Florida, there is a law that says no dwelling can be locked out from the nearest available road. There will always be a solution.
If you have any questions about this episode or anything pertaining to your closing, we can be reached at: 352-394-7408.