Easement Rejection - You Can't Get There From Here
Betty G., a real estate broker, purchased an undeveloped lot in a rural county in
Northern California. She also purchased a title insurance policy protecting not only
her title to the lot but also a road easement benefiting the lot across adjoining property.
The lot was the northernmost of a four-lot subdivision. The original subdivider had attempted
to reserve an easement over an existing north-south road that traversed the most westerly
boundary of the three southerly lots. However, the document that attempted to serve the
easement was defective because it did not contain the language necessary to give record
notice that an easement was being created. When the owners of the three southerly lots
found out that Betty G. intended to develop her parcel by dividing it into two lots and
building homes for sale, they challenged her right to use the easement. Betty G. made a
claim under her title policy.
It was determined that a successful reformation action to reform the document to correctly
reflect the intention of the subdivider to create an easement could be successful. It was
also determined that Betty G. had the right to an easement by implication, necessity and,
Following this analysis, contact was made with each of the owners of the three southerly
properties. After an explanation that Betty G. was entitled to the easement on any one of
several legal theories, two of the owners readily agreed to execute the documents necessary
to grant Betty G. an easement over their property.
The most southerly property holder, however, still contested Betty G's right to an
easement. They adamantly insisted that they would only execute easement documents if
Betty G. agreed not to develop her property. Obviously, that was unacceptable. Through
a series of correspondence it was made very clear to the most southerly property owners
that the alternative to settlement necessarily would involve litigation or other dispute
resolution mechanisms. After several weeks of dialogue and correspondence, the most
southerly property holders agreed to a cash settlement in exchange for a clear and
unambiguous easement grant deed.
This claim was resolved in a matter of weeks. Further, because of the facts Betty G was
able to be assured that if she wished to sell her property during the time the claim was
pending, title insurance would be available to her new buyer while efforts continued to
resolve the easement problem.
Betty G. stated that, as a real estate broker, she had always considered title insurance
to be simply a hurdle to delay a closing. However, after having her own claim with such a
good result, she realized how important title insurance really is.