When Can You Force Your Neighbor to Give You Access to your Landlocked Property?

Dovetail Properties, Inc. owned a landlocked tract of land next to property owned by Herron and Drayton.  Dovetail sought a private way by necessity, under the provisions of OCGA Section 44-9-40(d), over an existing private access easement located on the property of Herron and Drayton to provide access to and from a public road.  Herron and Drayton objected and the dispute ended up in the Superior Court of DeKalb County.

The general rule is that a prima facie case for a private way by necessity is met when the landlocked party can prove that he is, in fact, landlocked and has no other method of ingress or egress to his property.  His claim can be defeated by the adjoining landowner by proving that the landlocked party does in fact have other means of access OR, that the landlocked party landlocked himself.  The classic example is that when an owner owns two adjoining parcels, sells one, and landlocks the remaining parcel, he cannot later complain and obtain a private way by necessity.  But, knowingly purchasing a landlocked parcel does not prevent the purchaser of the landlocked tract from seeking a private way of necessity.  So what do we have here?

In this case, Dovetail bought its tract from Joseph Daniels, who just happened to be the President of Dovetail Properties.  Daniels owned both adjoining tracts individually – he conveyed the landlocked parcel to Dovetail; he retained the tract with public road access.  Although Herron and Drayton asserted that Daniels and Dovetail should be treated as the same entity for the purposes of this statute, the court recognized that the corporation is a separate entity and Dovetail could not be charged with landlocking itself.  The court relied on basic Corporations law to decide this one!

Practical Consideration:  If purchasing property that is landlocked, don’t be scared off if the price is right.  Access through a private way of necessity is possible, even if your neighbor says “you bought it that way.”  But beware, a private way will not be sufficient under most county development regulations to develop the tract into additional lots. 

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Since individual circumstances can differ, the information contained herein does not constitute the provision or receipt of legal advice by the attorneys at Roach, Geiger & Caudill and should not be relied or acted upon without consulting a qualified professional.