From a title insurance perspective, if we are being asked to insure an easement, one of the things we look at most closely is whether all of the correct parties have signed the easement. We are checking to make sure that the actual owners of record of the burdened and benefited parcels of the easement have signed the easement agreement. It’s not always necessary to have the owner of the benefited parcel to sign the easement, but it’s always necessary that the owner of the burdened parcel sign the easement.
We are also checking to see if the holders of mortgages that encumber the burdened parcel have signed or consented to the easement agreement. The lender or holder of a mortgage on the burdened parcel must sign or consent to a newly created easement. If that lender or mortgage holder does not consent to the easement and their mortgage was recorded before the easement gets recorded, the lender may have the ability, if the mortgage is foreclosed on the burdened parcel, to terminate that easement.