Access Granted: Navigating the Legal Path for Landlocked Utah Property

While property is often bought and sold without insurable access, there are times when it is required. Many buyers require insurable access, and it is essential for development and bank financing. Insurable access issues are rarely seen with homes, but are common with vacant land.

There are 2 basic causes for uninsurable access issues:

Landlocked: When there are no roads to the property.
Class “D” Road: When access to the property is across a Class “D” road.

Property can be sold without insurable access but full disclosure to the buyer is required. This disclosure is typically made in the Title Commitment.

Here is a breakdown of the primary ways to secure insurable access for a landlocked or Class “D” accessed property in the State of Utah.

Option 1: The Express Easement (The Best Choice)

The simplest and most secure path is to obtain an Express Easement from one or more neighboring property owners. This is a voluntary, written agreement that grants the right to cross the neighbor’s land (the servient estate) to reach the landlocked parcel (the dominant estate). This requires an easement across every parcel between a public road and the landlocked parcel.

Your Role & Key Steps:

Negotiate: Encourage your client to approach the adjacent landowner with an offer to purchase an access easement. This is a business transaction. Be prepared to offer fair compensation, cover all legal costs, and potentially pay for the installation and maintenance of the access road.
Formalize: The agreement must be in writing, signed by both parties, and recorded in the County Recorder’s Office to be legally binding and to “run with the land,” meaning the right of access transfers to all future owners.
Title’s Role: Our title work will review the legal description of the new easement to ensure it properly benefits your client’s property and is correctly recorded to eliminate the landlocked status from a title insurance perspective.

Option 2: Easement by Necessity (The Judicial Route)

If a neighbor refuses to negotiate, Utah courts may grant an Easement by Necessity. This is a court-ordered easement that is granted to prevent a property from becoming landlocked. This is a complex legal action and should be a last resort, always involving a real estate attorney.

The Two Key Elements to Prove in Utah Courts:

The landowner seeking the easement must prove both of the following elements by clear and convincing evidence:

Unity of Title (The Common Grantor): The landlocked parcel and the property across which the easement is sought must have been owned by a single owner at one time, and that single owner divided the land, inadvertently creating the landlocked parcel.
Reasonable Necessity: The easement must be reasonably necessary for the beneficial use and enjoyment of the landlocked property. A court will determine the location of the easement, typically granting it across the historically connected parcel, not necessarily the most convenient one for your client.

Title Tip: A preliminary title search can often uncover the history of ownership and subdivision (the “Unity of Title”), which is critical for an attorney to establish this claim.

Option 3: Prescriptive Easement (The Long-Term Use Claim)

A less common, but possible, route is an Easement by Prescription. This arises when a person has used another’s property for a specific purpose for a prolonged period, and that use has matured into a legal right. This, too, requires a court order to formally establish.

The Three Elements of Prescriptive Use in Utah:

The party claiming the easement must prove by clear and convincing evidence that the use of the neighbor’s property was:

Open and Notorious: The use was visible and obvious, such that the property owner should have been aware of it.
Continuous for 20 Years: The use must have occurred consistently for an uninterrupted period of at least 20 years (Note: A separate statute, Utah Code § 72-5-104, provides for public prescriptive roads after 10 years of public use, but for private access, the 20-year period generally applies).
Adverse: The use was made without the permission of the property owner. If permission was granted at any time, the use is not considered adverse, and the claim for a prescriptive easement will fail.

Conclusion

If a property appears landlocked, or accessed by Class “D” road, and insurable access is required, the most efficient solution is almost always an express, negotiated easement. Legal remedies like Easement by Necessity or Prescription are costly, time-consuming, and can severely strain neighborly relations, creating long-term headaches for your client.

For title insurance purposes “Insurable Access” means the property is accessed by crossing Class “A”, “B”, or “C” roads or connecting to any of these roads by one of the methods described above.

If you have any questions about recorded easements, property history, or how a lack of access affects the title insurance commitment, please do not hesitate to contact our office. We are here to help you clear the title path for a smooth closing.