An easement is the right of an individual or group to use or limit the use of the property owned by another property owner. You may be able to get an easement to cross another person's property; or your neighbor can get an easement forcing you to cut your trees along his building.
An easement is an encumbrance and can technically create a title defect that could make the title non-marketable. But easements need not jeopardize the title's marketability. As long as the real estate contract indicates that the buyer must accept a title with easements, the title would still be considered clear, acceptable and marketable.
Moreover, even if the real estate purchase (sale) contract does not mention any easements, recent court decisions have established that the title would still be considered marketable-as long as the easement is visible. For example, the city has an easement over the residential property to place a sidewalk through the front yard, along the street. Although the real estate contract and evidence of title makes no mention of the easement, the title would still be considered otherwise marketable.
Sellers should automatically state in the contract that the buyer must accept the title subject to easements, which will not reduce the property's marketability. Whenever possible, the seller should check the property's title and specifically mention in the contract the document number of the easement.
Buyers should in fact insist on specific indication of any easement. Buyers should not sign a contract that refers to "subject to easements of record" as it leaves them open to potential problems. For more information about easements, see the "All About Easements" article.
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