Lack of Access to Property - The Saga of George and Kathy
Mr. and Mrs. George B. purchased a small farm in a rural northern California County for
$70,000 in 1975. In connection with this transaction, they obtained an owner's title insurance
The only means of access to and from the Insureds' property was an old dirt road that went
across a neighboring parcel of land and connected with a state highway. The title search that
was conducted when the Insureds purchased their property showed that there were no recorded
grants of easement or other documents in the public records that gave them the right to use
this road. The road had been used for many many years and most people in the immediate area
had always recognized the old dirt road as an access way to the neighboring land. The title
insurance policy purchased contained the now-standard provisions insuring against loss caused
by the lack of a right of access to and from the property.
In 1990, the neighboring parcel was acquired by Out Of State Investment Corporation, a foreign
corporation that began to implement plans to build a 200-to-300-home residential subdivision.
When it determined that the dirt road used by the Insureds ran right through the middle of its
proposed subdivision, Out of State hired a large law firm from outside the community to bring
a lawsuit against the Insureds to prevent them from continuing to use the road.
When the Insureds were served with the lawsuit, they were struggling financially. They were
in the process of trying to sell their farm so that they could finalize their pending divorce.
They needed to be able to establish a right of access to be able to sell the farm, but could
not afford the crushing cost of litigating a high-stakes quiet title action against a wealthy
corporation represented by a law firm known for its "scorched earth" litigation taFNTICs. Even
if they could have afforded to retain an attorney, the Insureds had no experience or
information that would have enabled them to locate an attorney with the highly specialized
knowledge needed to effectively litigate the complex title issues presented by the lawsuit.
When the Insureds advised the title insurer of the lawsuit brought by Out of State, the insurer
retained an experienced and highly competent real estate attorney to represent them. Drawing
on its title expertise and its superior resources, the Company researched the history of the
Insureds' property and the surrounding properties back to the mid-1800's. Using ancient maps
and records, it was able to conclusively prove that the road used by the Insureds had been a
heavily-traveled wagon road in the late 1800's and had been established as a county road
under an obscure state law that had been repealed in the 1890's. Based on this showing,
the Insureds were able to obtain a summary judgment that conclusively determined that the
road was a county road and, therefore, that the Insureds had a legal right to use it to get
to and from their property.
By successfully utilizing the summary judgment procedure, the insurer was able to
avoid a lengthy discovery process, eliminate the need for a trial and resolve the lawsuit-which
might otherwise have gone on for years-in less than six months after it took over the case.
The Insureds were able to sell their farm, finalize their divorce and get on with their lives.
Out of State, which had refused to grant the Insureds a private right of way over its property,
had to revise its plans to accommodate the public road as a part of its proposed subdivision.