Easement removed from title report - Do you plot it?

[Paul Goebel]

One of the easements affecting a property "disappears" from an updated title report and subdivision guarantee. I know of the easement from earlier research and preliminary title reports, and have no evidence that it was quit-claimed. Would you consider removing the easement from a final map?

[E_Page]

Ask the title officer why it was removed. There could be a valid reason for it. If they can't give you a satisfactory answer, show it and include an explanatory note referring to the older PTR and the inability of the current tile officer to explain why it was removed.

[Paul Goebel]

What about a case where the title insurance company insures the easement, and removes it as an exception to coverage? The easement is still an encumbrance. I don't see how the owner's title insurance policy covers the Surveyor.

[E_Page]

Normally, they don't insure it as it is listed on Schedule B as an exception to coverage.

I'm confused. Are you saying that the title policy was specifically for the easement, but then the same easement is listed as an exception item, or are you saying that the policy is for the underlying fee parcel, that the easement was listed as an exception item in an earlier version of this policy (or previous policy by same title co for same parcel) but not listed on the most current?

I've never seen a policy that is written to insure an easement, but have seen several where they fail to include one or more in the exceptions.

If they've removed an item, easement or otherwise, from the exceptions since an earlier PTR for the same policy, it could be that the owner negotiated coverage for the easement for some reason or that the title company has uncovered some info that the easement has been abandoned or extinguished.

If the easement was an exception item on an earlier policy but does not appear on any PTR version of the current policy, the reasons listed in the previous paragraph are still possible. Much more likely is that they have a different title officer and technicians who prepared the recent PTR and they simply weren't very thorough.

Again, ask the Title Officer for an explanation. If he or she says the exception no longer applies but can't or won't provide you with supporting documentation, show it and include an explanatory note that the title company did not include it as an exception yet couldn't or wouldn't provide documentation of the easement's extinguishment.

The ALTA specs say that the client or client's agent are supposed to provide you with all of the documentation, and that you are entitled to rely on that documentation.

But they also state that you need to show all of the easements and encumbrances that you are aware of. Since you are aware of this easement, unless you find or are provided with documentation that satisfactorily shows that it has been extinguished, show it.

[David Kendall]

Is there any reason to conceal a valid easement on a subdivision map?

[E_Page]

I missed the context that it was for a subdivision so was thinking in context of ALTA. I should read slower. Doesn't change my previous advice though.

Never a good reason to conceal the existence of an easement. But if it has been extinguished or will be extinguished as a result of the new subdivision, that would be reason to not show it on the subdivision map.

[pls5528]

In the most recent years, I have found that I have been involved in bringing to the "attention" possible errors the title report exceptions. It seems that, just as with land surveyors, many of the good title officers are retired, or gone. As Evan had eluded to, it is best to discuss this with the Title Officer, and at least get their take on it. Many time, you may provide evidence or insight to have them change the report.
Mike.

[Jim Frame]

When I'm unable to get an authoritative answer from the title company, I list the exception without committing to its status. The language I use for most exceptions is "Blah blah easement per 123 O.R. 456 affects subject property and is shown hereon," but for these iffy situation I say "Blah blah easement per 123 O.R. 456 may affect subject property and is shown hereon."

[dedkad]

I have never seen reference to a title report on a subdivision map when it comes to easements, and would not recommend it. Unless you can find evidence that the easement was terminated, I would continue to show it on the map with reference to the recorded document number.

[rpost]

My 2 Cents:

I cannot think of a project (that had multiple easements) where I have had the pleasure of reviewing 2 different title reports and did not find one report deficient. Usually, the reports contain items that the others should have. I recently told a client that to insure all easements are included, he should order reports from 3 or 4 title companies. It was a joke, … sort of.

Just the other day, I compared 2 reports for the same property. The current report had 2 additional easements but was missing one from the other report!

Anyhow, I usually forward the conflicting report(s) to the title officer and ask for clarification. I do remember 1 time when the title company responded with an old document that removed the easement from title. The other company included it and did not discover the Quit Claim. So, it can go either way.