Easement liability title policy question

3 Replies

EE company buys property, a connected building, for $200,000. EE company uses 2 private lenders for $100,000 each Each lender gets the lenders policy from the title company on their “deeds of trust.” EE transfers the property to CQT “subject to” the two loans 5 years later. 10 years later the neighbor, who also is the original seller to EE Company, says they have an easement to a “common” stairwell. The stairwell was never used by anyone in those 10 years except for the EE and then CQT owners of the property. The easement was recorded in the county records prior to issuance of the title policy, and missed by the title company. The tenants in the building don’t like the aspect of sharing a stairwell for security reasons and have given notice of intent to leave. The neighbors want keys to the stairwell. Title company says they have no liability in the matter because both parties own half of the common stairwell and the easement allows each party to use the others half of the stairwell. Is there any recourse?

Richard, 

Standard disclaimer: I'm not an attorney and this ain't legal advice. 

IMHO  no recourse.  The easement doesn't affect the use of the building and no one is claiming they own something that they don't have the rights to.  The fact that the tenant "doesn't like it" is an attempt by the tenant to extricate themselves from the lease or other payment requirements. 

A common stairwell should be able to be secured at both the outside point of entry (it sounds like it is) and at any points along the way with doors that prevent unauthorized access. If the stairwell has been there all along,  it's not more of a security issue now than it was before,  just because some other folks are using it.

In theory, The tenant could abandon the stairwell in place and build separate access for themselves. 

Hope that helps. 

Good luck, 

Jim 

Hi @Richard Fischer ,

Not my area of expertise, but you may want to contact a lawyer. If I am reading it right the stairwell was maintained and only used by one side for 10 years? It might help to know which side "owns" it and which company "has access rights" to it? Check with a lawyer local to that area to be sure, but I believe there is something about an easement not being used in a period of time that can be used to show it is not needed. So your resolution may not lay with the title company but with who has been maintaining/not using the stairwell.

Good luck and hope it works out.

Mike Cumbie, Real Estate Agent in NY (#10401285310)

Free eBook from BiggerPockets!

Ultimate Beginner's Guide Book Cover

Join BiggerPockets and get The Ultimate Beginner's Guide to Real Estate Investing for FREE - read by more than 100,000 people - AND get exclusive real estate investing tips, tricks and techniques delivered straight to your inbox twice weekly!

  • Actionable advice for getting started,
  • Discover the 10 Most Lucrative Real Estate Niches,
  • Learn how to get started with or without money,
  • Explore Real-Life Strategies for Building Wealth,
  • And a LOT more.

Lock We hate spam just as much as you

Join the Largest Real Estate Investing Community

Basic membership is free, forever.