Easements
Easements come in many types, shapes, and sizes. An Easement is the right of another person or entity to use the land of another for a specific purpose. The electric company often has an easement to run power lines to a house and trim trees along a right-of-way. Easements can also ‘run with the land’ and be a valuable part of certain real estate.
With many easements, there is a servient lot and a dominant/beneficiary lot. The owner of the beneficiary lot has a legal right to use a certain portion of the servient lot for a specific purpose. The purpose can be egress/ingress, running a sewer line, and hunting/fishing, et al.
One of the most common mistakes with easements is conveying an easement when one person or entity owns both the servient and dominant lot. With two lots, if the same person or entity owns both lots, or becomes the owner, the easement, (which is the lesser estate), merges into the fee simple ownership interest (O.C.G.A. §44-6-2). Along the same line, the owner of two parcels of land cannot grant an easement to one of the tracts because the owner already has the legal right to access both properties (Gilbert vs Fine 288 GA App 20).
Think of two lots of land as if they were each a pie. One owner gave a neighbor a slice of their pie to represent an easement. The owner then purchased the neighbor’s lot. The owner who owns both lots now has all the pieces of the pie again. If that owner sold the servient lot without keeping the piece of pie that was the easement, then the easement disappears. The seller gave the buyer the whole pie and eliminated the easement because the seller did not reserve, or keep, a slice of the pie.
When preparing for a closing, closing attorneys will have a title commitment. The title commitment will list all the items required to insure title as well as any items that are exceptions to the title policy. Lenders and commercial purchasers always get a title commitment to review. It is not very common for a residential purchaser to receive it, even though any buyer could ask to review it.
The closing attorneys should notify a buyer if there is an uncommon easement running through the property being purchased, like a sewer or an access easement. It never hurts to ask the closing attorney for the title commitment and review the exceptions.
John C. Bennett is a real estate closing attorney and owner of Origin Title and Escrow, Inc.. Since 2003, Origin Title has handled real estate transactions – purchases, refinances, reverse mortgages – quickly and professionally. There will be no surprises, nothing misunderstood. Title searches are thorough and well-reasoned, to avoid unpleasant surprises later down the road. Calculate your closing costs in Georgia or Florida using our calculator or contact Origin Title using this form.