One More Way We Depend on Each Other

This article arises out of a real estate closing package. “A” was buying a piece of property from “B”. A received a title policy that had an express exception for “any encroachment shown on an accurate survey of the property”. No title underwriter wants to be responsible for the owner who decides not to spend the money on a survey. They want the owner to be responsible if he decides to waive the requirement for a survey. If you happen to own a Title Insurance company, this kind of exception in a policy makes very good sense.

Then I looked for a survey. There was one, and it showed the four corners of the property, which every survey must do, but no easement. However, it contained an exception that said “subject to any conditions that would be shown in an accurate title search”. The surveyor did not want to be responsible if the title company didn’t forward documents that would have created encroachments on this property. That makes very good sense if you are the surveyor.

But suppose you are A, who just bought this piece of property and now learns that his neighbor claims the right to access his own property across A’s, lot? He goes to his title company to find out whether the neighbor has that right. The closing agent first pulls up his file, and on the bottom of the survey are A’s initials indicating that he saw everything at the time of closing.

Now assume that A’s neighbor has a written easement granted by a prior owner of A’s lot. What more could A have done to assure he didn’t have that problem?

An easement is any right that one person has to use the property of another. An easement can usually be detected in one of two ways, by recorded documents giving the names of the parties and the legal description of the easement, or by seeing it being used, or both. An easement could have a serious effect on the usefulness of the property it runs across. Therefore, if there’s an easement, the buyer needs to know.

Expect three kinds of easements. One is an Express Easement given between owners that describes the property it affects. That easement can be found in the public records indexed under the names of the parties. The easement in our example should have been found by the title company or lawyer who closed. The second kind is one created by use, and it can usually be seen on the ground. In our example, the surveyor should have seen a path being used on the property to be purchased. The surveyor is legally obligated to mark on his survey any evidence of the use of property by a neighbor.

In the example of A who brought property from B, chances are somebody insisted upon a fast closing, and trying to accommodate, the closing agent ordered a survey before title work was finished, or that person simply didn’t send all documents to the surveyor. The surveyor covered himself from liability by signaling in his exceptions that he was not responsible for documents he had never seen. The title company protected itself by notating in the title policy that it was not responsible for anything not shown on the survey.

I’ve said there were three types of easements. The third hasn’t been mentioned here. It is an easement implied by law when a portion of a parcel is conveyed, isolating the remainder.

This article is not a primer on the law of easements. The best lawyer will not know every element of every kind of easement, without reference to statutes and cases. This is no place for that discussion. But the title examiner must know to send every recorded document that affects this property to the surveyor. The surveyor must know to locate all easements on his survey. As a real estate professional, don’t push so hard for a quick closing that necessary steps are ignored. Remember, any lawsuit arising out of a bad closing will likely name everyone in the room as a defendant. There is no such thing as good company among co-defendants.