An easemen is a limited right to use the land of another. Easements may be either a benefit or burden to the proposed insured property. All easements, although conferring a benefit, nearly always create an obligation on the benefited party, terms of which should be set out as an exception. An easement may also simultaneously are a benefit and a burden such as a reciprocal easement agreement in a shopping center. If an easement is a burden to the insured property then an exception must be raised for the easement in Schedule B. If an easement is a benefit to the insured property then it may be appropriate to consider the easement as an additional insured parcel in Schedule A. Your local underwriting counsel of Agents National Title should be consulted for title insurance issues relating to easements.
An easement may be appurtenant, that is, one which benefits a specific property and runs with the dominant or benefited land. Or, an easement may be in gross, which benefits a specific individual and does not benefit any particular land. Easements are assignable and subject to sale and conveyance just like any other interest in land. Easements in gross are rarely insurable, and easements that are not conveyed in a written document are not insurable.
Easements may be created by deed or other recorded instrument. However, as easements are a right and interest in land, in most jurisdictions, there must be a conveyance of the easement in order to create it. The mere recitation or drawing of an easement on a plat may not be sufficient to create an easement. If a recorded plat of the subject property shows an easement that affects the property, an exception should be raised even if no further documentation is found for the easement.
Easements may be created by necessity as when a landowner owning two adjacent parcels, one with access to a public thoroughfare and one without, conveys the landlocked parcel without an express easement or right of way. In most jurisdictions the parcel with the access to the public thoroughfare will be charged with an easement benefiting the otherwise landlocked parcel. An easement by necessity is not insurable without an order of a court of competent jurisdiction granting such an easement.
Easements may be by prescription. This is a method of creating an easement similar to establishing title by adverse possession. If one has used a portion of a property continuously for the required time period, openly and notoriously, without the permission or objection of the landowner, the land may be charged with an easement by prescription. Unexplained paths, driveways, or other features on or crossing the land that do not appear to be of exclusive benefit to the land itself may benefit others using the land. One reviewing a survey must be wary for such features. A prescriptive easement is not insurable without an order of a court of competent jurisdiction granting such an easement.