Legal-Ease: Access to landlocked property

Ohio law does not prohibit landlocked — lacking access to a public road/street — property. However, many counties and municipalities have regulations that prohibit the transfer or creation of landlocked real estate.

However, landlocked parcels can “slip through” the system and ultimately be created or transferred, even recently and even where their transfer is prohibited. Thus, whether the landlocked parcel’s configuration was created years ago or recently, the access challenges of landlocked properties are more than just academic or hypothetical questions.

Typically, the owner of a landlocked property will negotiate with adjoining property owners to purchase either (a) ownership of some property that will provide access between a road/street and the landlocked property or (b) the right to use some property — easement or right-of-way — that will provide access between a road or street and the landlocked property.

If neighboring landowners do not agree to the sale of property or the sale of an easement to the landlocked property owner, the landlocked property owner still has three ways to try to get access between the landlocked property and a road or street.

First, the landlocked property owner may satisfy the requirements to get an easement by prescription. A “prescriptive easement” is an easement — right to use but not own property — created by someone using an area as if the user can legally travel across the property even though the user does not have that legal right. To get a prescriptive easement, the user must act like the user has a right to use the access property and actually use the access property for 21 continuous years without permission to use the access property.

Second, a landlocked property owner may be able to get an “implied easement”. An implied easement requires that the landlocked owner prove four things: (1) that the landlocked property and access property were at one time in history owned by the same person; (2) that while both properties were owned by the same person, that person used the access property to access the landlocked property for a time period that would make it look like the access method was intended to be permanent; (3) that an easement over the access property is “reasonably” necessary to access the landlocked property and (4) that the use of the access property is not just seasonal or occasional.

Third, a landlocked property owner may be able to get an easement by necessity. An easement by necessity requires a literal and “otherwise impossible-to-get” need for an easement. This strict standard is very hard to prove and usually only applies to landlocked property that has only one method of access through property owned by another person. For example, a landlocked owner of a peninsula — property extending into water — that only has one neighboring owner through which access to the landlocked property can be used might be able to satisfy this standard.

Prescriptive easements, implied easement and easement by necessity must be proven through a “quite title” lawsuit that usually requires the landlocked owner to prove the landlocked owner’s needs and the legal requirements “clearly and convincingly”.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.