Understanding and Verifying Easement Encumbrances
An easement is a legal right that allows one party to use a portion of another party’s land for a specific, defined purpose. While many easements—such as those for public utility lines—are standard, others can significantly impact a property's development potential, privacy, or resale value. Verifying these encumbrances is a critical step in any real estate transaction, ensuring that buyers, sellers, and agents are fully aware of what burdens or benefits "run with the land."
Detailed Explanation: The Verification Process
Verifying easements requires a multi-layered approach. Because easements are legal interests in real property, they are typically recorded in public records. Here is how you can systematically identify them:
- Review the Preliminary Title Report: The most reliable source for identifying existing easements is the preliminary title report issued by a title company. This document lists "Schedule B" exceptions, which include recorded easements, restrictions, and liens. Always scrutinize this document early in the contingency period.
- Examine the Recorded Plat Map: A plat map is a detailed drawing showing the property’s boundaries, lot lines, and any recorded easements (e.g., utility corridors, drainage paths, or access roads). These are usually available through your local County Recorder’s office or the County Assessor’s GIS mapping portal.
- Order a Current Survey: While a plat map shows where an easement should be, a professional land survey shows where it is in relation to physical structures. A surveyor can identify "encroachments," which occur when a structure (like a fence or shed) is built into an easement area, potentially creating a legal liability.
- Search Public Records for "Easements in Gross" vs. "Appurtenant": Easements in gross benefit a specific person or entity (like a utility company), whereas appurtenant easements benefit an adjoining piece of land (such as a shared driveway). Ensure you understand the distinction, as appurtenant easements remain with the property even after a sale.
- Check for Prescriptive Easements: Note that not all easements are written in public records. A "prescriptive easement" can be created through long-term, continuous, and adverse use of a property by a neighbor. If you notice signs of regular usage—such as a gravel path across the property that isn't on the map—further investigation is required.
Expert Tip: Never rely solely on a visual inspection of the property to determine easement boundaries. A neighbor’s casual use of a section of your land for years can sometimes ripen into a legal claim. Always cross-reference the written legal description in the deed with the physical conditions on the ground.
Key Takeaways
- Due Diligence is Mandatory: Always prioritize the review of a title report during the escrow process.
- Legal Descriptions Matter: Easements "run with the land," meaning they bind all future owners, not just the original party who signed the agreement.
- Consult the Pros: If an easement appears complex or conflicts with your intended use of the land (e.g., building a pool over a sewer easement), consult a real estate attorney before closing.
- Identify Encroachments: Use surveys to ensure your property improvements do not violate the terms of existing easements.
Disclaimer: This article is for informational purposes only and does not constitute legal or financial advice. Real estate laws vary by jurisdiction; always consult with a qualified real estate attorney or licensed professional regarding your specific situation. For further inquiries, please contact us at [email protected].