Uncovering and appropriately addressing easements and encroachments is a critical part of title insurance work. Prior to issuing a preliminary report, commitment or policy, a thorough title search typically reveals easements of record. Encroachments onto or from the subject property are discovered by a survey, inspection or aerial photograph. However, there are times when these two common intrusions are hidden, misread or mis-documented in preliminary reports, commitments or policies. If either of these are missed, it could result in a future claim, an owner’s loss of property or, at minimum, a troublesome situation in which the property owner is surprised by an inconvenient burden they didn’t know about prior to closing on their purchase transaction.
Because of the potential problems, easements and encroachments must be understood and/or dealt with prior to the close of the transaction. Knowing where an easement exists puts the homeowner at ease when they decide to break ground for a swimming pool, erect a shed, build a fence or fully utilize their property in a myriad of ways. Understanding how an easement is used also avoids property disputes and unpleasant exchanges between neighbors or others who have rights to use and enjoy the easement. For instance, it would be critical for the property owner of a private path to a public beach to understand if the pathway was an easement to which others had legal rights to use for access to the beach.
This article examines encroachments and types of easements and how to locate them in the title search and examination.
It is always helpful to review applicable definitions. Trespass is defined as follows:
TRESSPASS – Legally covers a variety of wrongs against person or property. Most commonly used to describe the wrongful entry of a person onto another’s land, although encroachment of an inanimate object, such as a building or fence, is a form of trespass.1
Likewise, encroachment has the following definition:
ENCROACHMENT – Generally, construction onto the property of another, as of a wall, fence, building, etc.2
An encroachment is a continuing, structural trespass onto a neighbor’s land. An injured owner can recover damages arising from an encroachment. In fact, any person who has an interest in real property can recover damages for injuries to his or her interest caused by an encroachment. A court that grants a mandatory injunction ordering the removal of an encroaching structure also may award special damages for any injuries suffered by the injured party during its existence.3
If an encroachment is permitted to remain past an applicable state’s adverse possession period, it will ripen into a prescriptive easement, which is discussed in more detail below.
Again, it’s best to start with the general definition:
EASEMENT – An easement is an interest in land of another which entitles its owner to a limited use or enjoyment of the land in which the interest exists. (Rest. Property §450).4
The land that is benefitted by an easement is called the dominant tenement. The servient tenement is the land burdened by the easement.
There are three classifications of easements. First, there is the appurtenant easement. An appurtenant easement is created to benefit the owner of a dominant tenement in his or her use of land. An access easement is a good example.
Second, there is the easement in gross. An easement in gross does not have a dominant tenement and does not benefit a specific, adjacent landowner. Public utility easements are examples of easements in gross.
Finally, we have exclusive easements. Exclusive easements are exactly what their name implies – easements meant only for the use of a particular dominant tenement (adjacent land) owner. The servient tenement has no right to access the easement for any purpose unless authorized in the creation instrument.
Easements are commonly created by express grant, in a deed or other written agreement. Easements can also be created by express reservation or an exception in conveyances. When a subdivision map is drafted and filed, easements can also be created there. Easements are also created within declarations of covenants, conditions and restrictions. All these types of easements will appear in the public records and are discoverable through a title search.
Easements can also be created by implication, estoppel, prescription and necessity. These types of easements are not recorded and are not insurable, unless and until a court order memorializing their existence is recorded.
An easement by implication is created because of a specific set of facts which accompanies a conveyance of real property. The same is true for an easement created by estoppel. The facts must explicitly prove an owner of a servient estate is estopped to deny the existence of an easement.
Prescriptive easements are created by the adverse possession of the property that makes up the easement. The requirements for adverse possession must be established – use by the claimant for the number years required by state law, under color of title, with use that is open, notorious, continuous, hostile and exclusive. Encroachments have the potential to develop into prescriptive easements if enough time has passed.
An easement by necessity refers to an easement that is necessary to provide access to a parcel of property that otherwise would be surrounded by other property, and unable to be used or occupied. The existence of the necessity is all that needs to be proven in most jurisdictions, and such proof will be considered as evidence that the parties intended to create the easement rather than have property that has no access.
When preparing a preliminary report, commitment or policy, agents should review the search data to find all the potential easements on record. Deeds of record in the chain may reflect easements reserved for the use of third parties. The survey or inspection may reflect unrecorded easements shown by existing power lines, well-trodden paths and access roads. Aerial photos or Google satellite images may also give the title examiner a bird’s eye view of the property and reflect the reality of its use.
If you are asked to insure an easement which impacts a parcel other than the subject property, a title search must be conducted on that easement parcel and its legal description should be added to the preliminary report, commitment and policy as an insured parcel.
Encroachment locations are easily identified by a survey, aerial photos or Google satellite images. A property inspection is also a valuable tool. In addition, walking the property perimeter once the surveyor’s stakes are placed will allow a real estate agent or other professional in the deal to identify encroachments on the subject property or extending from the subject property onto the neighboring parcels. Once encroachments are identified, they should be added to the preliminary report, commitment and policy as Schedule B exceptions, unless plans are made to remediate the encroachments.
1 Talamo, John, The Real Estate Dictionary, Fifth Edition, Financial Publishing Company, 1991.
2 Talamo, John, The Real Estate Dictionary, Fifth Edition, Financial Publishing Company, 1991.
3 Miller & Starr, California Real Estate 4th, §17:4, 2020.
4 California Land Title Association, Manual of Title Practices, Online Edition, 2021.
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