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Real Estate Easements: A Question About Access

by | Jul 3, 2020 | Legal Due Diligence

We got a great question the other day, a client read a document and said, well it says I have access across this easement. What does that mean? Does that mean ingress and egress? Or does it mean anytime I want to however I want to. And they just wanted us to talk a little bit about that word access. So I went to Black’s Law Dictionary and the brand new 11th edition says access is well the first definition is a right opportunity or ability to enter approach past to and from or communicate with. And the example is access to the courts. Okay, so thinking about that i i guess it partially fits the easement question or the driveway question. You know, we’ve seen the word used in documents where people claim the state of Idaho has taken its access to a public road and that therefore, there’s an actual taking under the fifth in the 14th amendments to the US Constitution that requires just compensation. But this is not the use of the word in ordinary documents. And the question is what do we mean when we say we have for example, an access easement. easement can be limited in various ways by the parties that grant them. Normally, if it only says you have an access easement, what that means is that you have free right to ingress and egress, okay, so you can you can come in and you can go out. Normally, an access does not mean a storage. You know, you can’t store your boats there. You can’t store your snowmobiles in the in the summertime can’t store your construction materials for the new deck. That’s not access that’s not Ingress or egress. It’s not coming you’re going but many times we will see limitations on access in certain ways. So what are those ways? For example, you could say this is a passenger vehicle only access therefore no trucks, therefore no tractors therefore no buses. You can see where this is going. What if this access is pedestrian access to the beach only? No vehicles, no motorcycles, no sand? What do they call those? dune buggies? No dune buggies to play on the beach with no no. This is pedestrian access only many people will write into an easement. This easement is for residential access only. This easement is for commercial ingress and egress only. Now that’s commercial is kind of interesting, because you would think that a commercial access to a lumberyard would mean lumber trucks pretty much but it probably also means a FedEx driver or a UPS driver. These things are pretty standard in the world. People have delivery trucks from Amazon coming, you know, a mile a minute these days. And so I don’t think even a residential access would limit a UPS truck from delivering a package to a residence from Amazon. And so sometimes you can see that even though restrictions are placed on an access they can be slippery. Some access is only one way. One way vehicle access only and then there’s an arrow tells you what you’re supposed to do. If the access says trucks only we see this frequent Around Say, say if you go to Walmart, you know, you’ll see a big sign and it says, passenger cars this way trucks this way. Or if you go to the airport or a major train station somewhere, it’ll say, buses only this lane.

So the the restrictions on access that, that private parties us don’t always mirror the access restrictions that are put on by either commercial entities or governments in their governing capacity. So they say they, you know, they’re running an airport or they’re running a bus station or something like that. However, when a private party drafts a document, it is helpful to keep those definitions in mind that are used by the rest of the world. Because anyone reading that document in the future is going to say I wonder what it means for this to be a residential one way access for truck deliveries only. Oh my. That means there’s somebody on that street that has a home office. And the trucks have to make deliveries to the home office on this access. And by the way, that’s the only type of vehicle that gets to use this access that is extraordinarily limited. That the key is keep it simple, and make it so that it can be permanent. If you if you have a home business that you’re running, and the access is only going to be there while you have your home business, then please don’t make it only limited to things that your home business does as a normal function of its daily operations or its weekly operations. Make it more general rather than less general. The main dividing lines we see are usually all access is ingress and egress. Which means keep crossing over keep going keep go reach your destination This is just an access route to get there. And then the main split we see is residential and commercial or vehicle and pedestrian. If you want something to be pedestrian use only you need to say so many many trails are wide enough for vehicles. Many trails are wide enough for dirt bikes and motorcycles. In fact, probably almost all of them are but if you want non motorized travel only on this pathway on this access, it needs to be clearly stated. So that’s that’s the main watchword as always when you create a document that is going to be read by others in the future, who may have. The only thing in common they have with you is the English language. Go ahead and make it simple enough so that it’s very clear what type of access you’re talking about. And by the way, I need to be going myself, so have a good day.

At Timely Contract, our primary legal services include: real estate contract review, real estate contract drafting, legal opinions for title insurance exceptions, and research, due diligence, and legal opinions for properties.

At Timely Contract we have local real estate attorneys who have experience throughout Idaho, including: Boise, Post Falls, Coeur d’Alene, Lewiston, Moscow, and Sandpoint.

We also have local real estate attorneys who have experience throughout Montana, including: Missoula, Billings, Bozeman, and Kalispell.

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