What If Your Title Search Turns Up An Undiscovered Easement?

Posted on: 29 April 2016

You've finally found the perfect home, and you're in the process of closing on it. But when your real estate title services company runs a title search on the property, an easement you didn't know about is discovered. What does this mean and what can you do?

First of all, easements are relatively common, and most don't cause a problem for the property owner, so you're likely to be fine. An easement simply gives someone else, like a utility company or a neighbor, the right to use part of your property as needed. This may take the form of a utility company having the right to access a pole or wires on your land or a driveway that is shared between neighbors but is technically located on your property.

But sometimes an issue does come up, so it's wise to carefully review any easements and consider future concerns that might arise. Here's what you need to know about easements to make an informed decision on whether the property is still right for you. 

Types of Easements

There are three types of easements:

  1. Easement in gross. This is the type of easement that lets the utility company come on to your property for a specific reason, and it's recorded in your deed.
  2. Easement appurtenant. This is the type of easement when you allow your neighbor access to a driveway or path through your property, usually so they can get to their house (this could also be called a easement by necessity). These often show up on an official title report, but they can also go unrecorded initially. They are typically transferred from owner to owner.
  3. Prescriptive easement. This is when someone uses your property without documented permission. An example would be if your neighbor built a fence inside your property line and uses a foot or two of your property as their own.

The second type of easement is the one that is likely to be left off your title search accidentally, sometimes by mistake and sometimes because it was informal or unrecorded. Once it is discovered or identified, then problems can come up.

Finding an Undiscovered Easement

Once your title company turns up an easement, you have to make a decision about whether its existence will negatively impact your use of the property, now or in the future. For example, sharing your driveway with the neighbor is no big deal -- but what if he subdivides his land and you then have several people using your driveway each day?

You may also have plans to add on to the home you buy or put up a deck, but you find that won't be possible because of an existing easement that requires you keep that area clear.

Finally, you have to consider whether an easement will have a negative impact on your ability to sell the property, should you need to. An easement that prevents some uses or expansion of a building can be an issue for potential buyers in the future, and could make your land worth less.

Getting Rid of an Easement

Can you stop an easement? It's possible, but it can be challenging. Usually, utility companies will not give up easements on your property, unless you stop using a pole or wire that is covered by an easement. 

You have a couple of options, though. You can:

  • Buy the easement from the neighbor. If you have a shared road or space, you can sometimes pay to have the neighbor give up the easement and access the property a different way.
  • Claim the easement was abandoned. If there's an access road or path that once upon a time was used by a neighbor, but now is not, you may be able to have the easement terminated.

You may need to hire a real estate lawyer to explore all your options for removing the easement.

An easement on your title is not necessarily a deal-breaker when you're buying a property. But you should understand what the easement covers and how it could be used in the future before you ignore or disregard it. Visit TitleSmart for more information.