BY: Zach Roth, Board Certified Real Estate Attorney
When considering whether to purchase real estate, one matter that should always be considered is access. Without access to the property, the owner may find it difficult to utilize the property for their intended purpose.
Unless an exception appears in a title insurance policy, lack of legal access is covered under title insurance policies issued in Florida. The first step for a buyer should always be, therefore, a thorough review of the title commitment to ensure that the title insurer is committing to insuring access.
This step is not, however, the end of the discussion. A major item often missed by buyers is the difference between legal access and actual, physical access. Item 4 of the Covered Risks of the Owners Policy of Title Insurance issued in Florida insures against “no right of access to and from the Land.” The critical term in this phrase is “right.” This policy only insures that a legal right of access exists; it does not insure that such access is physically practical.
In one case, a property owner sued to establish coverage for lack of access because the platted road was “merely a continuation of a sandy beach” and “is covered by high tide water during the spring and fall of each year.” The title insurer argued that a legal right to access, rather than physical ability, is all that is provided under a title insurance policy. The court agreed, holding that “there is no dispute that the public record shows a legal right of access to appellant’s property via the platted Viejo Street. The title insurance policy only insured against record title defects and not against physical infirmities of the platted street.” Title & Trust Co. v. Barrows, 381 So. 2d 1088 (Fla. 1st DCA 1979).
Something important all buyers should keep in mind as well: while lack of legal access may give rise to a way of necessity under Fla. Stat. §704.01, such access if not available if a property has legal access, regardless of its practicality.
For these reasons, property purchasers should perform more than a cursory review of the title and should engage qualified attorneys and other experts to evaluate such matters should there be any possible concern.