Does Your Property Have An Easement On It? How To Find Out
I have often seen people make the mistake of assuming that one can easily determine the existence of an easement by simply searching the public records for a document called “easement.” Owners, prospective owners, real estate brokers, and even attorneys are not immune from making that mistake. This blog post will help you consider the different ways easements can be created and how you can go about looking for them.
Easements are rights to use someone else’s land for a specified purpose. Most typically, easements are created by an express written document which gets recorded with the county auditor/recorder’s office. Once it is recorded, the world is on notice of the easement. However, the documents which corroborate the existence of an easement will not always be called “easement,” and will not necessarily always be recorded. In the case of an express easement, the easement can be created either by a grant or by reservation, and grants are more common. A grant of an easement occurs when the owner of the property to be burdened by the easement grants to someone else the right to use the grantor’s property- usually a neighboring owner. If the only rights being granted in the deed are easement rights, then the deed will usually contain the word “easement” in the name. But often overlooked is the creation of an easement by reservation. In that case, the owner of property transfers ownership of the property to someone else, but reserves an easement in favor of the owner. Most of the time in that context, the word “easement” appears nowhere in the title of the document, but the easement rights are mentioned in the body of the document. Therefore, when you are searching for easements, look for reservations as well as grants, and do not assume that what appears to be merely a “deed” has nothing to do with easement rights.
Easements can also be created when properties are subdivided or platted. The person subdividing will usually want to ensure that all newly created parcels have access, appropriate utilities, and sometimes other rights. If you are researching property within a subdivision, there is a good chance the plat map may show easements not mentioned in other recorded documents.
Another way to search for easements is to ask a title company to provide a title report. Generally, the report will mention all of the easements the title company has found which burden the property. However, brokers and property owners should not assume that title reports are always exhaustive, nor are they legally authoritative. Title reports often fail to mention easements that exist for a number of reasons. Sometimes it is by mistake, and other times, the title company has made a decision to not include the relevant easement in the title report. Therefore, title reports should be viewed as a good starting point for mitigating risk, but should not be seen as the final word on what encumbers title.
Finally, property owners and prospective purchasers should remember that easements are not always written, not always recorded, and can arise in other ways. One of the most common examples is prescriptive easements, which arise when someone uses another’s property adversely and continuously for at least 10 years and meet certain legal requirements. In that circumstance, there will usually be no agreement or recorded document in the public records. Sometimes easements can also arise by implication, such as when an owner sells part of their property which would be landlocked if there were no easement over the property being retained. Determining whether property is burdened by an off-the-record easement will most often involve obtaining a survey and gathering facts to determine whether an easement was validly created.
The lawyers at Beresford Booth have experience representing property owners, brokers, and prospective purchasers in easement matters. We would be happy to assist you with your litigation needs or in resolving your insurance dispute.