Steven Winkler, Chief Underwriting Counsel and Secretary

Financial Group


Title insurance coverage for access to a property is
well-established but not well understood.    The American Land Title Association’s policies
for owners and lenders both insure against loss or damage resulting from “no
right of access to and from the land….” 
The critical point is:  the policy
insures legal access only.  It does not guarantee any particular level or
convenience of access, developable access or access for a particular
purpose.  If the property abuts a public
street anywhere, even for a foot, or if there is any other legal way of getting
to the property, the title insurer has no liability under this provision. 

A recent case decided by the New York Supreme Court,
second Department (43 Park Owners Group,
LLC v. Commonwealth Land Title insurance Co., 2014-07120)
reaffirms this
basic principle.  The dispute involved a property on Wadsworth Place
in Manhattan. 

The court explained the property’s geography and the
access issue as follows:  “The 260-foot-wide easterly boundary of
the property runs along Wadsworth Terrace and slopes down very steeply from
northeast to southeast. The southeastern corner of the property is
approximately 30 feet below street level, and the northeastern corner is
approximately 4 feet below street level. Running along the easterly boundary of
the property along the Wadsworth Terrace sidewalk is a retaining wall owned by
the New York City Department of Transportation … The 1½-foot-wide stone
retaining wall extends 30 feet below street level and about 4 feet above street

The plaintiff claimed that the title insurer failed to
disclose that the retaining wall blocked access from the public street to the
property.  The title insurer countered
that the plaintiffs had legal access because the property abutted a public
street, and the court agreed.  The access
coverage the title policy provided “refers to the absence of a legal right to
access and does not cover claims concerning lack of an existing means of
physical access," the court concluded. 

and Correct

The court’s decision is consistent with the way access
coverage is designed to work.  The title
insurance policy specifically excludes issues related to zoning, subdivision
controls, and other matters related to the exercise of governmental policy
powers.  The policy does not address such
questions as whether the access is adequate to satisfy subdivision or zoning
regulations.  Consider these two

  • A 100-acre tract with 46 feet of frontage on an
    accepted town road has access under the terms of the policy, even though,
    in order to subdivide the property, the owner would have to build a road
    50 feet wide connecting with the existing town road. 
  • A parcel fronting on a state highway has access
    under the policy, even though the state will not authorize the curb cut
    required to construct a restaurant on the site. 


It is also important to remember that a title insurance policy insures title to
“land.”  Both standard ALTA policies
specify:  “The term ‘land’ does not
include any property beyond the lines of the area described or referred to in
Schedule [A], … but nothing herein shall modify or limit the extent to which a
right of access to and from the land is insured by this policy.” 

Access by a driveway that crosses the neighbor’s
property is not insured (in the absence of other endorsements) so long as there
is other frontage.  The access coverage
will not create liability for the insurer in this situation.

Similarly, if the property description in the policy
does not include an appurtenant easement, the easement is not insured. If the
only physical access to the property lies over this easement, the title company
would have no liability as long as there is legal
access somewhere, even if the legal access is over a cliff or through a

residential properties, the ALTA Homeowners Policy has a broader provision that
insures against loss or damage if “you do not have actual vehicular and
pedestrian access to and from the Land, based upon a legal right.


some states, access endorsements may be available (subject to various
conditions), providing more focused insurance. 
For example, the ALTA Endorsement 17-06-Access and Entry insures against
“loss or damage sustained by the Insured if, at Date of Policy:


(i)       the
Land does not abut and have both actual vehicular and pedestrian access to and
from the “Street”;

(ii)     the
Street is not physically open and publicly maintained, or

(iii)     the Insured has no right to use existing curb
cuts or entries along that portion of the Street abutting the Land.”                                                                             


While a title insurance policy does provide “Access
Insurance,” owners and lenders should not rely on that coverage without
obtaining a survey or conducting additional due diligence to verify that the
property has the necessary access for a particular activity.  In the title business, it is often easy to
forget that the goal in purchasing property is not to acquire “title”, but to
use the property for a specific purpose. 
The title policy does not insure that this will be the case. □