Either a purchaser of real property, or a lender accepting a Mortgage on real property, may request that an easement interest be insured as a part of their title policy. This is a request that should be made as early as possible, as additional research may be required in order to be sure the easement was properly created. This will involve examining title to the property that is burdened (that is, on which the easement is located) by the easement.
Researching Title Records
Title records must be reviewed to be sure that all the necessary parties joined in the creation of the easement. Records subsequent to the easement creation must be reviewed to be certain that there have been no changes that would affect the validity of the easement, either by modification, release, or merger.
The title insurer would then need to do research on the burdened property that the easement runs across to make sure that it was properly granted. We also have to look forward from the date the easement was created to make sure that there have been no modifications of that easement or changes in circumstances that would mean that your present intended use is overburdening the easement.
The other thing that needs to be looked at when we’re being asked to insure an easement is that the easement actually accomplishes what we’re trying to do. For example, we had a transaction some years ago where there was a piece of property that was located away from primary streets and needed an easement across railroad land to get out to the public right-of-way. There were actually three easements that seemed to provide that access until we had had a survey done and discovered that the three pieces did not connect to each other, nor did any of them actually connect all the way out to the street. So that’s another situation where there can be problems and it’s useful to have a survey of your easement as well as of your primary parcel if you are trying to understand your piece of property.
Insuring an old easement without active evidence of use is difficult because if the easement has not in fact been placed in use within the first period of years, then the easement can be deemed to be gone by adverse possession.