Property Access: Easements, Roads, and You
By Ann Myre and Kristi Street
Are you interested in purchasing land in the near future? If so, it is important to be aware of the way that land is accessed. Easements and roads are two ways that one may access a property, and each has its own requirements and obligations.
The more complicated of these options is the easement. Essentially, an easement is the right to cross or otherwise use land that does not belong to you. Easements may arise by agreement (called express easements), by use (prescriptive easements), or by necessity (implied easements). If a deed or contract with the landowner grants or reserves a right to access or use the land, it is an express easement. If, however, no such language exists, there may yet be a prescriptive easement, created when the land is used as if an easement exists for a sufficient period of time (in Kentucky, fifteen years). Finally, if a property is divided into multiple parcels, and one parcel has no obvious method of accessing it, an implied easement is created, whereby access to that parcel is preserved via easement across the parcel blocking it.
You may also be familiar with the concept of an easement “running with the land;” when an easement has this modifier, it means that it will exist even after the land is sold to a new owner. Prescriptive easements and implied easements run with the land, but express easements may not necessarily.
When determining whether an easement exists, it is helpful to look for an easement of record in the county clerk’s office. If the land you are interested in buying is subject to an easement, it is important to know your obligations under the easement. Some easements may require you to maintain them, such as keeping the way clear, free to use, and in good repair.
Compared to easements, roads are much more straightforward. Under Kentucky law, public roads include “[a]ny road, street, highway, or parcel of ground, dedicated and laid-off as a public way and used without restrictions on a continuous basis by the general public for fifteen (15) consecutive years….” Ky. Rev. Stat. § 178.025. More recently constructed state and county roads are usually acquired by a deed, which contains a legal description and a reference to the plats prepared by the government building the road; in the absence of a record, the road’s width is “presumed to extend to and include that area lying outside the shoulders and ditch lines and within any landmarks such as fences, fence posts, cornerstones, or other similar monuments indicating the boundary lines.” Finally, if there is neither a record nor any landmarks, the road includes “the shoulders and ditch lines adjacent to said road and to the top of cuts or toe of fills where such exist.”
Notably, property plats may have access roads dedicated on the plat, but the government may or may not accept these as shown. Whether or not something is a public road depends both on any available records as well as how the right-of-way is used. However, you will not have any maintenance obligations for public roads running across your property, as those will be maintained by the government.
In conclusion, whether the property in which you are interested is accessed by an easement or a road, you may have different concerns. Generally, your first step should be to visit your county clerk’s office for more information about the property, and to examine any plats, deeds, or other documents that may be available. As always, our firm is happy to help you do any research you may require about your prospective land purchase.