Q: Can I be blocked from a private road to a property I want to buy if there is not a deeded easement for the road to it?
I am interested in buying a property that does not have a deeded access. There is a private road connecting it to a county road. The listing agent says that road cannot legally be blocked, denying me access to the property. If this is true I want to buy the land. When I was shopping for a buyer's agent they told me this was not true. So, I need to know do I have legal access to the property if there is not deeded access? What does Virginia law say?
A: The answer is in insurance not at law. The legal answer could get tied up in a astoundingly expensive trial on the existence of an easement by estoppel. You should draft the contract so that it is contingent on the insurability of legal access and egress, and you should run not walk to the exit if the title insurance policy excludes claims regarding the access and egress. The policy should expressly include that issue so there is no claim later that you concealed it from them. If the title is insured, they will be required to defend your title, but you might want a careful review of the policy before closing to ensure that you are insured. If you are insured, it'll be the insurance company's problem. I'm a title agent as well as a lawyer, and I wouldn't write that policy if I knew the facts you described.
A:
Mr. Sternberg is correct - except I'd hire a real estate lawyer to advise me, NOT a title or settlement company who cannot give advice or interpretations of documents. Your contract should be written such that you have or will get INSURABLE ACCESS to the property and that YOUR LAWYER must also confirm unimpeded access. And I agree that getting that coverage is doubtful.
Years ago I had a case involving a road not maintained by the state. But it was at one time in history a public roadway. Virginia law does provide 'once a road always a road' unless a lot of very specific hoops are jumped through. But you don't want to spend $tensofthousands finding that answer.
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