Buying a home with an easement. Sellers deny that it exists. Real estate agent less than helpful.

[WaY_WeiRd]

What is the name of your state? Michigan


First time homebuyers.

We're buying a home with a shared driveway. This was not disclosed when we offered, because our agent did not make sure that we got the seller's disclosures.

There is an easement over the driveway too.

I only discovered the easement because we were talking about installing a fence around the garage, looking at pictures, and my husband realized the neighbor uses the driveway to access their backyard. I did a register of deeds search, and there was the agreement from 1998.

We contacted our agent who contacted the seller's agent. At first they said, "there is no easement, it's just a 50/50 shared driveway." When we said that we'd located a recorded easement online, their story changed to "oh we forgot about that."

We asked about "exhibit A the mortgage report from April 26, 1998" referenced in the recorded easement. The agreement itself references this as what would tell us the location of the easement so that we would know how much of it is on our property, and what amount of maintainance we are responsible for. Exhibit A still hasn't been shown to us, and we asked for it on Monday. Our agent even told us at one point, instead of locating the document, that we should just find another house. We don't want to do that. She claims now that she is waiting for the title company to give it to her.

We do not want to back out of the sale because the house checks all our boxes, and after initially being angry about feeling deceived about the driveway and having to share it, we honestly don't care that it's shared at this point... We just want full disclosure about our rights and responsibilities concerning the driveway.

We had also pointed out that we did not have the seller's disclosures too, and it took until today to get that.

In the disclosures, they acknowledge a shared driveway but marked "NO" for easements even though there clearly is one on file with the register of deeds. So they are not being truthful and we do not have all the information we need concerning this situation.

I'm loss as to what to do. Again, we do not want to back out. We just want all the info. If they cannot provide the documentation referenced in the agreement for the location of the easement, do we ask that the sellers provide a recent survey that would show it? If they don't have a recent survey, do we request that they have one done prior to closing to clear up any questions of location? Do we request they pay for us to have one done? Do we close and handle it with title insurance? What do we do?

 

[PayrollHRGuy]

It is possible the seller simply thinks of the easement as a shared driveway. Though I can't think of any way for there to be a shared driveway without an associated easement.

I would certainly demand to see Exhibit A. And if it is not clear demand that the seller provide a survey of the land clearly stating the easement.

Your seemingly overwhelming desire to not back out of the deal may make all of this moot. What are you going to do if there is an easement that requires you to be 100% in charge of regular maintenance of the easement? You need to be ready to walk away from a bad deal.

 

[justalayman]

Did there happen to be a statement in the purchase agreement that says something like;

Subject to all liens, easements, and encumbrances of public record? Since the easement was easiest discovered, that hurts your argument.

Now the question is; why aren’t you angry with your agent for not obtaining the sellers disclosure, at least at the time you made a offer to purchase?

Since you have since obtained a sellers disclosure and it does not disclose the easement (of course if is possible he seller was ignorant of the fact), you have an option of terminating the sale if you choose to. Short of that, you have no specific rights. You can attempt to renegotiate the contract but the seller is not obligated to do so. If you close on this sale, you would have no right to object to the failure to disclose the easement as you are now aware of it and as such, have accepted it does not damage you.


The enforceable easement is whatever is described in the original grant. That would be what you discovered at the register of deeds or it’s predecessor documents.

If you purchase a buyers title insurance policy (most people misunderstand that the policy the lender requires is a lenders policy and protects the lender from losses and not the buyer), given this is a knkw. Easement, the insurance offers you no protections. The easement is a known encumbrance and will not be subject to coverage for matters such as you are addressing here.

 

[adjusterjack]

I'm loss as to what to do.

First of all, read every word of your purchase contract. If you don't understand it, take it to a lawyer.

Do not rely on your agent to protect your interests. Your agent is a whore to the commission will protect his/her own interests.

we do not want to back out.

Never get emotionally attached to purchase prospect. When the deal smells, be willing to walk away. That's your only leverage.

 

[adjusterjack]

given this is a knkw

What's a knkw?

 

[justalayman]

What's a knkw?

My autocorrect has been intentionally creating errors.

Known.

The statement should have been

...given this is a known easement...

 

[WaY_WeiRd]

It is possible the seller simply thinks of the easement as a shared driveway. Though I can't think of any way for there to be a shared driveway without an associated easement.

I would certainly demand to see Exhibit A. And if it is not clear demand that the seller provide a survey of the land clearly stating the easement.

Your seemingly overwhelming desire to not back out of the deal may make all of this moot. What are you going to do if there is an easement that requires you to be 100% in charge of regular maintenance of the easement? You need to be ready to walk away from a bad deal.

We aren't worried about being 100% responsible, we just want to know what exactly we are responsible for and where the easement exactly is. And without exhibit A, we really don't. It isn't on any plat maps. We cannot find that info.

Our agent is not understanding this and took three days to email us the easement agreement... Which I already had access to. So, we still don't have the coordinates of the easement and still don't know what we'd be responsible for.

I'm more worried that if we don't get all the pertinent info now as we're in the process of buying the home, that we won't ever be able to track it down... And therefore won't ever know exactly what's what in case a dispute ever arises either if the neighbor's sell their house or whatever...

I don't think it's a bad deal, I think we're just dealing with people who cannot understand what we're asking for or why it's important.

 

[WaY_WeiRd]

Did there happen to be a statement in the purchase agreement that says something like;

Subject to all liens, easements, and encumbrances of public record? Since the easement was easiest discovered, that hurts your argument.

Now the question is; why aren’t you angry with your agent for not obtaining the sellers disclosure, at least at the time you made a offer to purchase?

Since you have since obtained a sellers disclosure and it does not disclose the easement (of course if is possible he seller was ignorant of the fact), you have an option of terminating the sale if you choose to. Short of that, you have no specific rights. You can attempt to renegotiate the contract but the seller is not obligated to do so. If you close on this sale, you would have no right to object to the failure to disclose the easement as you are now aware of it and as such, have accepted it does not damage you.


The enforceable easement is whatever is described in the original grant. That would be what you discovered at the register of deeds or it’s predecessor documents.

If you purchase a buyers title insurance policy (most people misunderstand that the policy the lender requires is a lenders policy and protects the lender from losses and not the buyer), given this is a knkw. Easement, the insurance offers you no protections. The easement is a known encumbrance and will not be subject to coverage for matters such as you are addressing here.

That's the problem. The easement agreement doesn't actually describe the easement. It just says there is one and lists the two properties that are part of it by their legal description. It doesn't say where on the driveway the easement actually is.

And we are increasingly upset with our agent. I keep telling my husband to go to her broker, but he won't. I don't know why. She is not understanding what we are asking for and I don't know why. It's simple. We want exhibit a so we know the location of the easement. That's it! He is handling all of this while I work. I just want the info of the location of the easement before we close so we don't lose our chance to ever have it. So we don't immediately run into issues with the neighbor, or any other worst case scenario.

And yes, the contract we have does say that the property is subject to all those things and if a title defect arises that can be readily corrected there would be a 30 day extension.

 

[justalayman]

A

That's the problem. The easement agreement doesn't actually describe the easement. It just says there is one and lists the two properties that are part of it by their legal description. It doesn't say where on the driveway the easement actually is.

And we are increasingly upset with our agent. I keep telling my husband to go to her broker, but he won't. I don't know why. She is not understanding what we are asking for and I don't know why. It's simple. We want exhibit a so we know the location of the easement. That's it! He is handling all of this while I work. I just want the info of the location of the easement before we close so we don't lose our chance to ever have it. So we don't immediately run into issues with the neighbor, or any other worst case scenario.

And yes, the contract we have does say that the property is subject to all those things and if a title defect arises that can be readily corrected there would be a 30 day extension.

An easement being present is not a title defect, especially given its known.

The granting document has to describe the easement such that it can be determined where it is, what uses are allowed, and generally the size. If it does not include such info, there is no useable easement because it cannot be determined where it is and what uses are allowed.

The document you seek does not legally establish or locate the easement. There must be granting language attached to the title. What you look for is the first time the easement is addressed in a deed. The granting language will either be in that deed or it will be in a stand alone document created between that transfer and the one prior.

Why can’t you call the agents broker?

 

[FarmerJ]

W W just so you know for sure many years ago when people granted easements often they had a so called understanding with the one they granted it too and didn't have a problem with a easement that was not well defined / written. ( they relied on verbal agreements as to what they thought was the right thing to do) then properties could change hands enough that those so called gentlemans agreements are long forgotten. SO its entirely possible that the easement being written with out more details as to limitations or maintenance is just what you have. NOW if it becomes a really big issue and that neighbor eventually sells , it may be cheaper to buy their home, remove the easement then fix up that home and sell it or use it as a rental for a while then sell it later.

 

[xylene]

I'm loss as to what to do. Again, we do not want to back out.

Um, well... This seems like a silly / crazy perspective to take...

Also, it sure sound like you and your spouse are NOT aligned

This is supposed to be a very active process, not something that just happens to you.
If your agent is underperfroming, tell them and maybe cut them loose...

 

[justalayman]

Um, well... This seems like a silly / crazy perspective to take...

Also, it sure sound like you and your spouse are NOT aligned

This is supposed to be a very active process, not something that just happens to you.
If your agent is underperfroming, tell them and maybe cut them loose...

Cutting them loose isn’t going to happen. Agent has a claim of procuring cause regarding the contract. As such they are due their commission. Highly unlikely they would relinquish their commission and unlikely another agent would step in when they know they aren’t getting paid anymore than the ops agent agrees to pay them


Op needs to take this up with agents broker. That is the proper direction

 

[xylene]

Agent has a claim of procuring cause regarding the contract.

We'll agree to disagree on the deceptive conduct and the implications of that.

 

[WaY_WeiRd]

A

An easement being present is not a title defect, especially given its known.

The granting document has to describe the easement such that it can be determined where it is, what uses are allowed, and generally the size. If it does not include such info, there is no useable easement because it cannot be determined where it is and what uses are allowed.

The document you seek does not legally establish or locate the easement. There must be granting language attached to the title. What you look for is the first time the easement is addressed in a deed. The granting language will either be in that deed or it will be in a stand alone document created between that transfer and the one prior.

Why can’t you call the agents broker?

Here is what the easement says:

"A. "An irrevocable nonexclusive easement over the private road located on [neighbor's address] and [house we're buying address] as shown on exhibit "A", the mortgage report dated April 27, 1998.

B: Neither party shall park a vehicle for extended periods of time or otherwise unreasonably obstruct the joint driveway. Upon request either party agrees to immediately move any vehicle or other item obstructing the joint driveway.

3. Intention. It is the intention of each party to grant to the others an irrevocable easement. It is the purpose of this easement to benefit both parcels and to burden both parcels in a similar fashion. The easement is appurtenant to and runs with both parcels.

4. Maintainance. Each party bears the full costs of repairs and maintenance of the easement located on their separate premises, and each party agrees to keep the easement in a reasonable state of repair and not impede the normal access to and across the easements. "

So, it says there is another document that would define what is counted as the driveway and the size of the easement (if I'm understanding it correctly which I think I do) and that we'd each be responsible for our part... But the document that tells us what is ours and what is theirs hasn't been located. Aka, exhibit A.

We did speak to a real estate atty and, after reading the agreement, he did say we need to see "exhibit a" to know exactly what/where the easement is. Especially because the driveway has widened and changed since 1998 when this was done.

I can't call the broker because I don't have time while at work and by the time I get home it's too late. I don't take breaks at work and have to rely on my husband to handle all of this. I might get a minute here or there to check my texts, but that's about it. I groom dogs and don't get a chance to stop during my work day. So if I were going to call the broker, it'd have to wait until Sunday when I'm off next. I'm gonna bet I wouldn't get ahold of the broker on a Sunday. My husband is home all day, so that's why he is doing everything.

When I search register of deeds, what should I be looking for besides this agreement? I only see this agreement and several mortgage papers from the same time or around the same time (+1-2 yrs), but none of them address the easement except for the easement agreement that references that mortgage report I can't find.

ETA: If we're going by plat maps, it would appear that 90-95% of the driveway is located on our lot, but none of the plat maps I have found or been given show the easement. So it would appear that this isn't a 50/50 split between the lots but that we would be the servient tenement and they are dominant... Which is why I really want to know the exact area of the easement. It's very unclear.

 

[justalayman]

We'll agree to disagree on the deceptive conduct and the implications of that.

I’m telling you. An agent that has a valid claim of procuring cause will prevail in court. I don’t see anything saying there was deceptive conduct. Maybe ineptitude but not actual deceit. Regardless, there would have to be an agent willing to pick up the pieces, with a very high likelihood they would not get paid. It’s not going to happen. The broker needs to step in and deal with this.





Exhibit a needs to be recorded and attached to the title of the property. Since mortgages are recorded, it may actually already be recorded along with the mortgage. The agreement is specific in its description. It’s just that it does require the exhibit a to describe whet the grant was specific about.

If you cannot locate attachment A you have an issue. What I would suggest is a chat with the neighbor. Other the that it is likely the easement does not exceed the drive as you see it today. Can you live with that?

If you can’t get your husband to contact the broker, maybe buying a house with your husband is something you should think twice about. .