One of the most important factors you have to keep in mind when insuring easements is the potential overburdening of easements. In this article, we are going to discuss how to avoid overburdening easements.
To give you an example – we were asked to insure a rural property that was next to a shopping center. The rural property had an easement that ran through an area underlying the shopping center. The owner was intending to develop the rural piece of property and they wanted us to insure this old easement that had run through what is now in the shopping center.
At the time the easement was granted, these were both rural pieces of property. So we had to consider the intended use of the easement when it was first created. Most likely, it was created to allow a farmer to cross another farmer’s land.
Things have changed considerably since then and there is now a different use on the land where the easement ran. The shopping center had built a wall across the easement without knowing the easement existed. The rural property wanted to develop another shopping center. This constituted a complete change from what the easement was originally created for.
Now there are shopping center tenants, employees, and more crossing this other shopping center. As a result, we required that the rural landowner had to get permission from that shopping center. Ultimately, we did not get permission and were not able to insure that easement. This illustrates the importance of examining the original intention of an easement.