Easement and Title Insurance questions

[craftygirl]

What is the name of your state (only U.S. law)? TN
I recently bought land to build a commercial building. After construction began, a man from the neighboring property starting talking about an easement. Our Title company never disclosed that the property had an easement. (with setbacks from the front and back of the property- the property purchase would not have been made due to the amount of useable land). Via Internet, I was able to find past deeds to the property showing a 12 foot easement. This in itself is not a huge problem since our building is exactly 12 ft from that property line, thus not violating the easement; however, the neighbor has put us in a position of having to get a restraining order, due to his coming on our property and in general harassing our contractor. We have no problem with the neighbor having access, except the 12 ft. is sloped toward our building and has multiple trees in the way of direct access other than by foot. 1) Will our Title Insurance cover any of our legal costs in trying to get the easement removed 2) Will the Title Insurance help us in anyway since the property purchase would not have been made with knowledge of the easement?

 

[justalayman]

what makes you think you can get the easement removed?

while you state the title company did not alert you to the easement, what about your surveyor?

 

[craftygirl]

There was no indication that there was an easement from any party involved. The seller, who according to the documents I found, only granted the easement in 2005, the surveyor, or the title company.

I read where you can get an easement removed via a judge's decision. I don't really think the easement is an issue, in that if anything more than walking access was wanted it would involve major altering of the terrain and would be very costly to the easement owner. However, I believe this gentleman doesn't quite understand he doesn't own the 12 feet of property and that he only can use it for access. I guess I'm not sure how to get him to back off.

 

[justalayman]

I don't really think the easement is an issue, in that if anything more than walking access was wanted it would involve major altering of the terrain and would be very costly to the easement owner

. However, I believe this gentleman doesn't quite understand he doesn't own the 12 feet of property and that he only can use it for access.

. have you read the document that created the easement? Without that, you have no idea what rights the dominant tenant has. If he has an exclusive easement, he may be able to keep you off the easement.

as long as he is within his legal use of the easement, there is nothing you can do about it. If he comes onto your property, you can warn him and then have him cited for trespassing. Especially if you are building, there is serious liability in allowing an unassociated person within the construction area.

I read where you can get an easement removed via a judge's decision.

generally that is not true. A court has no right to deprive a person of their interest in a property without some serious justification.

The seller, who according to the documents I found, only granted the easement in 2005, the surveyor, or the title company

.I don't understand what you mean by this but when it was granted is irrelevant. If he has an easement, he has an easement.

 

[craftygirl]

All the easement documents state are a right to ingress and egress (sp?). There is nothing in the document as to specifics.

Since the easement was only put on the deed in 2005, it is my belief that the seller of our property. the same one who granted the easement, should have disclosed the information. The property purchase took place in 2009.

 

[justalayman]

unless there is something specifically asked or it is on a question on a disclosure, it is not required the seller make a point of telling you. It is something that should show up in a survey so, if it didn't show up in your survey, I would look to the surveyor for answers.

Title insurance typically will list something such as:

subject to all liens and encumbrances of record. It might be listed specifically in your policy but in your initial binder, most likely not.

the fact that you could find the easement so easily means it is "of record". Your surveyor should have included it on the survey. If he failed to and it is an issue, you need to talk to him about it.

You have said very little about the situation in general but based on what you have said, you have no right to attempt to remove the easement. As to the rights; ingress and egress. that means going in and out. If it was intended to be a vehicle drive, that means there will be some work going on concerning the easement. One thing you need to be cautious of is to not impede the dominant tenants right to use the easement. In that matter, his rights do supersede your your rights to the easement.