Phillips & Angley

Is an unrecorded easement still valid?

Many commercial property owners in Boston have had to create an easement for their property. There are many reasons why an easement may be necessary. An easement gives another person the right to use the land for a specific purpose. Sometimes, a person needs access to their property through another person's property, which may require an easement. Or, a building may be accidentally built on another person's property, which can result in an easement necessity.

An easement is usually recorded in the property title with the county. But, potential problems can arise if an easement is not recorded. There are three types of easements that can govern a property. One is an easement in gross. This is where the easement is recorded and described in a deed. These easements are given to a certain person or business, such as a utility company.

The second type of easement is an easement appurtenant. This is where the property is shared between owners for things such as a shared driveway or if there are access roads. Sometimes, these easements are recorded, but not always. They could be listed as an exclusion on a policy of title coverage. They usually stay with the property and are transferred from owner to owner. The third type of easement is a prescriptive easement, which is when a person's property is used by someone else without their permission for a period of time.

When an easement is recorded, it makes it easy for everyone. However, when these easements seem to appear out of nowhere, it can get tricky for property owners. A legal professional skilled in easements can help their client work through the existing laws and figure out what needs to be done. They can research the history of the property and help determine if there are any easements and if the easement agreement can be terminated.

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