By: Samuel Iden
Being able to legally access a property from the road, while often taken for granted, is of vital importance. For homes in subdivisions or lots touching a public road, it’s usually not an issue. Sometimes, on property that hasn’t been sold in a long time or a lot that has been subdivided within the family over the years, problems regarding a lack of access in the chain of title do arise. The seller may have been gaining access all along by traveling across subservient property belonging to one or more neighbors that landlock the subject property from the road. Permission to travel across the property of another for an express purpose is an easement.
Easements can come in a variety of fashions. There are implied easements that arise from the subdivision of a lot creating a necessity of easement access in the process. Easements can be obtained by prescription, which carry some similarities to adverse possession, needing the seller to have treated the easement access land as their own, without consent from the subservient property owner(s), for a couple of decades. Or, more commonly, easement permission can be granted by the subservient property owner(s).
In practice, this topic often presents itself when the seller has been using easement access with verbal or assumed permission, often for many years. Parties to the transaction might assume that ongoing use of easement access for however long is sufficient for obtaining clear and marketable title. That’s not a safe assumption. To get title insurance coverage for both the owner and lender, there will need to be a written easement drafted, executed by all title holders of subservient property and recorded in the chain of title.
As part of the request to execute a written easement agreement, the current owner(s) of subservient property might be made aware for the first time (or simply reminded) the property over which the unwritten/unofficial easement travels is actually theirs. The request for execution of a written easement agreement could trigger a monetary demand for cooperation or even revocation of the current easement use. Such a scenario would constitute a critical obstacle for the seller to overcome by satisfying the demands of subservient property owner(s) in order to obtain the signatures of all title holders on the written easement agreement to be recorded. The title needs to be clean before the buyer closes.
You can see how risky and imprudent it would be for a buyer to accept title to a property with no more than a seller side assurance of, “that driveway has been used for years, you can trust the neighbors are fine with it.” Even if the title company didn’t require a recorded easement agreement in the chain of title before providing coverage. It’s a potential problem the buyer doesn’t want to face later during ownership or when the property is being sold the next time.
With this knowledge, now you can Rest Easy.
