One problem title insurers encounter with easements is that descriptions contained within the easement document are either missing or not sufficient. In this article, we are going to talk about the importance of correct legal descriptions in easement documents and what happens when these descriptions are insufficient.
The Importance of Correct Legal Descriptions
The correct legal descriptions for both the benefited and burdened parcels should be included in any easement document. This is for a couple of reasons:
It’s important to know which parcels (the benefitted and burdened parcel(s)) are involved in the easement.
Without valid legal descriptions for the benefited and burdened parcels, the easement document may not be recordable and the county recorder or registrar of titles will reject the document for recording.
It’s also important when drafting an easement to have a good description of the easement itself. A good legal description of an easement area is one that can be located by a surveyor. An example of a bad legal description for an easement would be describing the easement “as it currently exists.” It’s nearly impossible to locate an easement that was created years ago with a description of the easement area being as it existed at that time.
Occasionally maps or a drawing of an easement parcel are attached to the easement document in place of a legal description. It can difficult to determine where the easement lies in a sketch or drawing especially if the map is shrunken down to an 8 ½ by 11 sheet of paper or the easement is defined by color coding on the attached map. County recorders often reject documents using attached maps or drawings used as a description of the easement area either because the easement is not well defined or it’s difficult to read. And the colors no longer appear when the document is copied or recorded. A full legal description of that easement created by a surveyor or an attorney should help alleviate problems with the descriptions of an easement parcels.
Recording the Easement
It’s important that the easement itself get recorded. If the easement isn’t recorded in the public records, then the public isn’t aware of the existence of that easement. An unrecorded easement is also not an interest that title companies will insure.