5.00 Easements And Easement Insurance

5.00.1

Easements In General

Definition

An easement is an interest in land in the possession of another which:

  • entitles the owner of the interest to a limited use or enjoyment of the land in which the interest exists;
  • entitles the owner to protection as against third persons from interference in such use or enjoyment;
  • is not subject to the will of the possessor of the land;
  • is not a normal incident of the possession of any land possessed by the owner of the interest; and,
  • is capable of creation by conveyance.

Land in Respect To Easements

The dominant tenement or estate is the land to which an easement is attached or the service is owed. The servient tenement or estate is the land which is burdened with a servitude.

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Classification Of Easements

The almost infinite factual variations permit numerous classifications of easements. However, easements may generally be divided into two broad classes: (1) easements appurtenant; and, (2) easements in gross.

The classifications of easements having frequent significance in connection with a title insurance policy are those based on:

  • the duration of the interest.
  • the affirmative or negative character of the acts privileged thereby.
  • the presence or absence of a dominant (as well as a servient) estate.

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Easements Appurtenant

Concept

An easement appurtenant is created for the benefit of another tract of land and cannot exist separate and apart from the particular land to which it is annexed.

Characteristics

An easement appurtenant requires two distinct parcels of land owned by two different owners:

  • The dominant estate to which the right belongs; and,
  • The servient estate upon which the obligation rests.

When granted or established, the same person must have unity of title to both the easement and the dominant estate. It cannot exist separate and apart from the dominant estate to which it is annexed.

Generally, if the easement and other documents do not clearly evidence the intent of the parties, courts presume that an easement is appurtenant.

If the easement is reciprocal, the same tract partakes of the condition of dominant and servient. It runs with the land and does not need to be mentioned in any instrument of conveyance. It inures to the benefit of the dominant estate and cannot be separated from the land to which it is annexed.

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Easements In Gross

An easement in gross is an easement that is not appurtenant to any estate in land. The easement in gross is a mere personal right to use another's land; it is not supported by a dominant estate, but is attached to and vested in the person to whom it is granted. In many states, the easement in gross may be assigned.

Many states use conservation easements to preserve historic districts, scenic areas, and other natural or historic areas from development or change. In addition, federal law provides that the Secretary of Agriculture of the United States may enter into a contact relating to real property for conservation, recreation, or wildlife purposes. The conservation easement is a negative easement that prevents the fee owner from using the land in ways that would compromise its preservation. Because of doubt over the common law validity of this form of negative easement, many jurisdictions have enacted conservation easement statutes. Those statutes vary in requirements and applicability. Some recognize that the conservation easement may be enforced either by the "holder" or grantee of the easement, or by a third party, such as a governmental body, charitable association, or charitable trust, which has a right of enforcement.

The Uniform Conservation Easement Act, which has been enacted in a number of states, authorizes creation of a conservation easement for "relating or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archeological, or cultural aspects of real property."

Other examples of statutorily recognized easements in gross that may be created by express agreement of the parties some jurisdictions include historic preservation (fascade) easements, solar easements (easements for solar access), and wind-space easements (which prevent development that blocks wind flow).

Note: Please call our underwriting personnel before insuring an easement in gross.

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Easement And License Distinguished

A license is a grant of permission or privilege to perform an act or series of acts on land which belongs to another and in which the licensee has no interest, estate, or possessory right. The licensed act or series of acts is one which would amount to a trespass on the licensor's land but for the license.

A license does not create an interest in the land in favor of the licensee; it is a personal right, of a temporary character. Unless provided otherwise, it may be revoked at any time by the licensor and may not be assigned.

An easement always implies an interest in the land in and over which it is to be enjoyed. It is more or less a permanent right. Its ownership changes with the ownership of the land to which it belongs. It cannot be revoked. A license may be created by parol or by an act of the licensor sufficient to show the licensor's assent. An easement generally can be created only by grant, or by implication or prescription (each of which presupposes a grant).

Note: Do not insure licenses without approval from our underwriting personnel.

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Easement And Profit A Prendre Distinguished

A profit a prendre is the right to take part of the soil or produce of land (soil, gravel, oil, gas, minerals, timber, etc.) owned by someone else, or the right to participate in the profits thereof. It is distinguishable from an easement, since one of the features of an easement is the absence of all rights to participate in the profits of the land charged with it.

Many transfers historically considered to be profits a prendre are denominated as deeds or leases, such as timber deeds, timber leases, or gravel leases. These rights are insurable on the same basis as easements in gross except when they cover oil, gas, or other minerals.

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Easements As Exceptions

In General

Any recorded easement that affects the premises in question must be shown as a title exception unless the easement is:

  • properly released of record; and/or,
  • judicially terminated or extinguished.

Note: See Waiving an Easement Exception below.

Basic Elements of an Easement Exception

Any easement exception should contain the following:

  • Recording data (Book and Page) (Volume and Page) and if too comprehensive or complex, the following phrase: "Terms and provisions of".

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Waiving An Easement Exception

Basic Methods

The basic methods of waiving an easement exception are as follows:

  • The recording of a valid abrogation agreement;
  • The recording of a proper release; or,
  • A nonappealable determination entered by a court of competent jurisdiction decreeing the termination, extinguishment, or invalidity of the easement.

However, it is not always an easy task to determine the validity (for the purposes of waiving the exception) of these instruments. It is often necessary for lienholders and other interested parties to join in the execution of these instruments or to be named as defendants in the judicial proceedings. It should also be noted that in the lack of compliance with these requirements might impede the waiving of an easement exception unless duly executed releases are later obtained from the necessary parties.

Doctrine Of Merger

Unless you have received written approval from our underwriting personnel, the doctrine of merger should not be relied upon when asked to waive an easement which appears as an easement exception to the title.

A proper instrument showing the acquiescence to the merger must be made a matter of record before the exception is waived.

Abandonment

Physical abandonment should not be relied upon when waiving an easement which appears as an exception to the title.

Other Occurrences

The happening of any of the following occurrences should not be relied on as the sole basis for the waiving of an easement which appears as an exception to the title:

  • Expiration of the term or duration;
  • Occurrence of stated event;
  • Completion of purposes;
  • Violation of conditions;
  • Change of conditions;
  • Nonuser;
  • Inconsistent Acts;
  • Adverse possession;
  • Destruction or alteration of building; or,

Sale for taxes. Note: In some states, the law expressly recognizes that a tax sale will not cut off an easement recorded before the year that the taxes were assessed or due; in other states the law does not address the issue or suggests that the tax sale will extinguish all prior easements.

Possibility of An Easement Being Extinguished By the Foreclosure of a Prior Deed of Trust

You should not waive an easement simply because it was recorded after a prior deed of trust that was later foreclosed.

Instead, the easement must be shown in the commitment together with the following language:

Note: this easement was recorded after a prior (deed of trust) (mortgage) recorded in Book _____ , Page _____ of the deed records of ___________ County, which was subsequently foreclosed. Unless a release satisfactory to the Company is furnished, the policy to be issued will except to the easement.

Possibility of an easement being extinguished by the foreclosure of later real estate tax lien.

In many states, an easement on or over the servient estate will be extinguished if a tax sale of the servient estate occurs and the prior easement is not excepted in the tax deed or in a law recognizing the continued enforceability of the easement. However, in no state should this rule be relied upon in waiving easements that encumber the insured land.

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Insuring An Appurtenant Easement

Checklist of items to be considered when insuring an appurtenant easement:

Note: Some items might need special consideration or additional treatment.

Easement Must Be Appurtenant

The instrument to be insured must be an appurtenant easement. Please contact our underwriting personnel if you are asked to insure licenses, profits a prendre, or easements in gross.

Specific Purpose

The easement must have been created for a specific purpose (driveway, ingress and egress, party wall, utilities, aerial, avigation, etc.). An easement that does not state its purpose should not be insured.

The purpose of the easement, as stated in the easement grant, should be made a part of the easement description. In the event that the exact language stated in the easement grant cannot be used, the purpose of the easement be described as follows:

"For the purposes described in said (instrument) (easement)."

Exclusive or Nonexclusive

Exclusivity, if claimed, must have been specifically stated in the instrument that created the easement. In any other case, the easement must be referred to as a nonexclusive easement when you describe an easement that is insured under the policy.

Reasonableness of Use

Insurance of an easement does not insure that the actual use will be reasonable.

The owner of an easement can make reasonable use of it. The extent of the use of the easement is governed by the intent of the parties, as evidenced by the terms of the grant. Generally, subdividing the dominant estate (benefited land) is reasonable use if the terms of the appurtenant easement do not limit its use. However, an appurtenant easement may not be used to benefit land other than that to which it is appurtenant. If the grant or reservation of the easement states a specific purpose for the easement, courts are generally reluctant to expand that use.

Easement Must Have Been Created By A Written Instrument

Appurtenant easements cannot be created by parol. While it is possible to create an easement appurtenant by prescription, it is not insurable without a court decree.

The Instrument Creating The Easement Must Have Been Properly Executed

The grantors must have possessed full legal capacity at the time of the execution of the easement.

The Instrument Creating The Easement Must Have Been Executed By All The Owners Of The Servient Estate At The Time Of The Execution

A grantor cannot create an easement with respect to land which the grantor does not own. Consequently, one who has an undivided interest as tenant in common or is a concurrent owner cannot create an easement effective as to the shares of any other tenant in common or concurrent owner.

Joinder Of The Spouses

Proper joinder or consents from spouses are required and must be filed for record.

Joinder Of The Lienholders

If all those parties holding mortgages or other liens against the servient parcel have not joined in the execution of the instrument that created the easement, proper joinder or unqualified subordinations from the parties must be filed for record.

Acknowledgment

The instrument creating the easement must be properly acknowledged. Any specific additional requirements for recordation of instruments, such as witnesses, also must be satisfied.

Recording

The instrument creating the easement must be properly recorded.

Chains Of Title To Be Examined

Generally, two different chains of title need to be examined: one pertaining to the dominant estate; another pertaining to the servient estate.

In some cases, it may be necessary to show two sets of exceptions: one in relation to the dominant estate; another in relation to the servient estate. For example, it would be necessary to except or make requirements concerning a mortgage on the servient estate that was created before the easement.

Ownership Of The Dominant Estate And The Servient Estate At The Time Of The Creation Of The Easement

Ownership in different parties, at time of the creation of the easement is acceptable. Ownership in the same party, but severed at the time of the creation of the easement, is acceptable. Ownership in the same party when the easement is created by a mortgage is acceptable.

However, if ownership is in the same party and not severed at the time of the creation, an easement appurtenant is not created for insuring purposes.

The Easement Must Have Been Granted To The Owners Of the Dominant Estate In The Same Manner In Which They Hold Title To the Estate.

Condition Of The Servient Estate At The Time Of The Creation Of the Easement

All the defects, liens, and encumbrances affecting the servient estate and not satisfied, released or subordinated at the time of the creation of the easement must be shown as exceptions affecting the servient estate.

Condition Of The Servient Estate Subsequent To The Creation Of The Easement

In order to determine that the easement has not been terminated either by voluntary release or by merger and also to determine whether it is subject to the payment of any taxes and assessments, the examination of the land that is or will be encumbered by the easement must be continued to the date of the policy which will insure the ownership of the easement. Any unpaid taxes or assessments affecting the easement, as of the date of the policy, must constitute a Schedule B exception unless the tax assessment of the land that is or will be encumbered by the easement specifically excludes the easement and the easement is assessed as a part of the dominant estate (benefited land) or state law provides that the enforcement of taxes and assessments on the servient estate will not destroy the easement.

Reciprocal Easement

If the easement is reciprocal, that is, if the dominant estate is also a servient estate, a proper exception must be made in Schedule B of the policy to the terms of the easement.

Necessity For Exception In Connection With The Easement To Be Set Forth In Schedule B

Any unusual burden, qualifications, or restriction contained in the easement grant should be specifically set forth in Schedule B of the policy, such as by exception to the terms of the easement instrument.

Form Of Creation Of The Easement

Express grant

Deed of conveyance

Deed reservation

Agreement

Mortgage

Plat dedication

Implied dedication

Condemnation

Prescription

Implication

Custom (e.g., beach access)

Estoppel

Necessity

We do not insure easements by prescription, estoppel, implication, or necessity unless recognized by a final court decree of competent jurisdiction.

Easement Created By A Mortgage

An easement may be insured in a loan policy when the only grant of the easement is by the mortgage itself. This can only occur when the owner of the benefited land, which is the land to be mortgaged, is also the owner of the easement premises. Then, by the terms of the mortgage, the owner establishes an easement over the easement premises for the benefit of the mortgaged premises. This easement will inure to the benefit of any purchaser of the benefited land at any foreclosure sale of the mortgage.

Easement Created By Reservation Of Grant In Favor Of A Third Person

This situation occurs when the owner conveys the premises and attempts to reserve an easement over the premises for the benefit of a third person (an owner of adjoining land). Any interest created in this manner is uninsurable.

Has The Easement Been Created For The Benefit Of A Smaller Parcel Of Land?

An appurtenant easement will not benefit any contiguous land acquired by the owner of the dominant estate subsequent to the creation of the easement. Such use constitutes overburdening of the easement.

The Easement Is Unobstructed And In Use

There is no information, recorded or unrecorded, to the contrary evidencing that the easement has been abandoned or extinguished by adverse use.

Factors Or Events That Might Have Resulted In The Termination Of The Easement

Expiration of its duration (depending upon the terms of its creation)

Satisfaction of condition or happening of contingency

Release deed

Abrogation agreement

Merger

Foreclosure of a senior lien on the servient tract

Abandonment

Termination by operation of law

Possible termination by an adverse possession

Cessation of its necessity

Condemnation

Sale for taxes (state law varies)

Unreasonable use (if the excess use cannot be terminated)

Has The Easement Been Properly Described In The Commitment?

Has The Easement Been Properly Described In The Policy?

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Exceptions and Issues Of Possible Application When Insuring An Appurtenant Easement

  • Proposed easement not yet in final form.
  • Easement not properly located or adequately described (such as an aerial or other easement not located).
  • Rights of others: Do not insure as exclusive easement
  • Reciprocal easement (exception to easement when insuring).
  • Terms, provisions, and condition of the easement generally need to be excepted.
  • Uninsurable appurtenant easement is included in the legal description of the property to be insured (clearly note that not insured).
  • Easement was created for the benefit of a smaller parcel of land (and thus may be overburdening if used for other land).