Will an Easement Need a Separate Recording When Someone Wants to Sell or Buy?

An easement gives someone the right to enter, use, or travel through a deed holder’s land for a specified reason — without impacting the deed holder’s ownership of that same land.

In this Q&A column, we take a look at easements that come up when a deed changes hands.

Q&A: Frequently Asked Questions Before the Deed Changes Hands

Easements might not get a lot of attention until one of the owners decides to transfer their deed.

• A buyer asks: How will my lender view easements? Is it enough for the deed to describe an easement? Or does the title insurer need to see a recorded easement deed specifically?

• A seller asks: What if the easement wasn’t recorded — and now I need to sell?

Let’s take a look at these questions. To start off, we’ll look at a very common scenario. There’s an easement, and it’s somewhere in the language of the deed itself.

An Easement Recorded on the Deed Shouldn’t Be a Problem, Right?

If you acquire a deed, it’s probably subject to easements. Almost every property is. The most common easements are utility easements (electric, gas, cables). They’re expected. They don’t cloud the title.

And sometimes a title is created for an address without access points. So an easement in the deed formalizes access rights.  

But sometimes there are separately recorded easements, and documentation is needed for financing. A separately recorded easement deed may include more details.

The borrower (or, more likely, the title company hired for closing on the financing) can find the deed online. Use the deed holder’s name, the parcel number, or the street address as a search term.

So far, straightforward. Now, what if you’re selling a home with an unrecorded easement?

I’m Selling. But First, I Need to Add This Easement. Do I Have to Create a New Deed?

Say you live next door to a property whose owner told you long ago that you could extend part of your drainage system through their land. You had the necessary installation done. Nobody ever recorded an easement, though.

What now? Do you need the neighbor to sign a separate easement deed and file it with your county recorder of deeds?

Or do you need a whole new deed for the home that includes new easement language?

Creating a separate easement (granted by the other owner to you) is the typical route here. The new easement deed should be created in advance of the deal. Potential buyers will find it through the title search, once you’ve recorded it.

You could create the easement in the deed you’re giving to a buyer. But this must be handled transparently. Deed changes could impact the buyer’s financing. Hiring an experienced lawyer to handle the deed transaction would be a wise move.

What Are the Types of Easements?

Easements exist to enable access. They vary in their scope and sometimes they have time limits. They can form through prescription — by the parties’ behavior. Or they can serve a necessity, so the property is marketable.  

There’s the right of way, known as an easement appurtenant. Such easements “run with the land” as the property changes hands. So, the next buyer takes the deed subject to the recorded easement.

In contrast, an easement in gross benefits a particular individual, club, or other party and does not run with the land, and must therefore be separate from the deed. It spells out how the land can be crossed or used, by a specific user, for a specific need.

Could I Have a Legally Valid But Unwritten Easement?

Yes. Not all easements are written down.

What about an implied easement? Maybe it’s the use of a shared driveway. Or it could be a path over landlocked property that simply needs public access to be marketable. State laws generally recognize implied easements for deed holders with these obvious access needs.

And what about prescriptive easements? These don’t come into being through the parties’ agreement. These easements come into existence because the users openly act as though they exist. The landowner never gave express permission. Prescriptive easements can be appurtenant (running with the land), or in gross (personal to the user).

The user who wants to prove an easement exists must demonstrate their continual reliance on the access for the minimum time period. (That minimum number of years appears in a state’s law. State law can require the use to have been going on a very long time.) Note that prescriptive easements just let a non-owner cross or use the land — not to gain ownership stake. Still, prescription is a real way for a trespasser to acquire a right to use a pathway.

Buyers can ask about extended title policies that cover loss of land where others have trespassed for the state’s minimum period of years.

Getting It In Writing: What Goes Into an Easement Deed?

You may create a written easement deed — separate from your property deed — by agreement of the other land owner. As it’s in writing, this document will be called an express easement. This is the formal transfer of rights conveyed by the owner of one piece of land to the owner of the abutting land.

Your express easement defines its scope in writing. The writing should state that this is a present “grant” of “right of way” or “easement.” It could state that the easement holder’s rights extend for a specified term of years, or until a specific event occurs, and then automatically expire. Or the easement may exist for the duration, and run with the land.

Must the easement agreement be signed by the land owner who’s allowing the use? A title expert in your state can tell you. Typically, yes.

Easement deeds are dated, notarized, stamped, and recorded with the county’s register of deeds. They show addresses of the properties involved, and names of the parties and the preparer. The reason for the easement, its type and scope all appear in the writing. So do any payments, if made.

A lender might request this documentation, with its official county stamp. The language in your property deed alone may not be enough to satisfy the lender.

You may find and download the easement deed form for your state here.

And a Word (or Three) to the Wise…

Anyone may create an easement to share rights to their own property. But the agreement should have the benefit of legal guidance. A title expert can check your title history for existing easements. This professional may recommend that you hire a surveyor to find unrecorded easements. In any case, it’s not pleasant at all to have blown off the title search and end up in court over somebody’s use of access.

Deed holders should also discuss the tax impacts with their accountants. In some cases, it’s important for deed holders to strategize with their financial advisers or estate planning experts.