April 01, 2016

Unraveling the Property Right of Access to Roadways

For owners, “access” to abutting or surrounding roadways is essential to their property. Without it a piece of property is “landlocked” and thus has little, if any, economic utility. Private property owners want good access for their property because good access increases the property’s use, utility and value. Governmental authorities also want private property to have access to abutting or surrounding roadways so that land does not sit idle but is instead economically productive. Property with good access increases the economic and social vitality of the community and is thus “a good thing.” But the law surrounding takings of property right of access is complicated and varies between states.

To ensure that all property has access to roadways, and to prevent land from becoming landlocked and thus unproductive, a complex body of law has developed concerning what is referred to as the “property right of access.” The right of access is a property right. In some states, the property right of access is classified as an “easement.” Regardless of whether the right of access is classified in the law of a particular state as an easement or as some other type of property “interest,” it is generally accepted that the right is a right of movement of vehicles and pedestrians back and forth in between private property and public roadways. The law typically provides that access rights come into legal existence the moment a roadway is created, including when a roadway is merely dedicated to the public in a plat. No deed conveying a property right of access need be given to anyone for a property right of access to exist. The right of access continues forever unless an owner gives a deed to the government conveying her “access rights” or the right of access is acquired by the government in a condemnation case.  

In most states the property right of access extends only to the abutting or near lane of a roadway. That is why (again, in most states) no “taking” of the right of access occurs when a median is built in the middle of a roadway preventing some traffic turning movements into and out of the private property from the “far lanes” of the road. In some jurisdictions the property right of access includes not only the right to get onto and off of the immediately abutting roadway but also the right to “get from there to the main thoroughfare in a reasonable manner.” In some states the property right of access has been described as a right of direct access to the abutting roadway, while in others the right has been described as merely a right of reasonable access to a roadway. In states that provide that the right of access is only a right of generally reasonable access to a roadway, a landowner likely would not have an access “takings” claim if its previously existing direct access to the abutting roadway were to be removed and replaced by, for example, a frontage road that connects back to the roadway at a remote location.

Regardless of the actual “scope” of the right of access under the law of individual states, the law of most states provides that the right of access may be regulated by the government if the regulation does not go so far as to constitute an actual “taking” of the right of access or the “substantial impairment” of the right of access. Thus, for example, in some jurisdictions the road authority could tell a gas station that its driveway must be located no closer to an intersection than X feet due to safety concerns. Provided that following the imposition of such a regulation the property retains “reasonable” access, such a regulation of access rights would not constitute a taking of access rights. Concededly, such rules do not provide property owners much clarity concerning the scope of the right of access they may own, and so most states provide that the question of whether the right of access has been taken in a particular circumstance must be determined based upon a “totality of the circumstances.”    

Changes in the physical path of access from roadways to property occur often. In some instances the loss of previously existing direct access (and its replacement with circuitous access) can literally destroy a business, especially convenience-oriented businesses such as fast food restaurants, gas stations and convenience stores. In some states, such a loss of direct access to an abutting roadway would constitute a taking of the property right of access for which the property owner is entitled to just compensation. In other states, however, such a loss of direct access may not be a taking if, for example, the replacement or substitute access is still deemed to be “reasonable access.”

The law concerning what changes to access do or do not constitute a taking of the property right of access is complicated and varies significantly from state to state. As a result, those planning to buy property for a use which requires a certain type or “quality” of access should consult an experienced lawyer before the purchase to determine what right of access applies to that property.

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