Determining if an Easment Exists and Can Be Transferred

[Ethep3333]

My question involves an easement in the state of: Georgia

I want to purchase farmhouse A (Dominant property). Farmhouse B (Servient Property) parceled off Farmhouse A in 1987 and sold it to owner 1. Owner 1 sold it to owner 2 in 1996. Servient owner claims there is no express easement and that she had an informal agreement with owner 1 and 2 to provide access on the private road (owned and maintained by her) that also goes back to her farmhouse. She wants new owner of farmhouse A to put in new driveway (could be done-house fronts road, but would be ugly and expensive). (Tried to offer farmhouse B owner money to create easement-she was not interested).

In the 1987 deed there is language related to an easement as reads below:


"Grantor hereby grants and conveys to Grantee, for the use and beneflt of the Dominant Property, an easement over, across, and through the Servient Property for ingress and egress as described below:......[/B][/I]". The "described below" entry on the deed was manually crossed out and witnessed by a notary several days after the deed was recorded. It references an "Old road" across the property that has not been maintained and is not the "private road" that was and is currently used to access both properties.

Here are my questions:
1. Is there an express easement by virtue of the language that was not crossed out on the deed?
2. If not, can a case be made for an implied easement?
3. Would title insurance cover easement disputes?
4. Are easement issues a valid reason to lower an offer to purchase? (This is a Freddie Mac house)
5. How much time, energy, money, pain are easement disputes typically?
6. What if farmhouse B owner puts up gate, fence, etc.? What are my remedies?

[jk]

The "described below" entry on the deed was manually crossed out and witnessed by a notary several days after the deed was recorded.

Huh?

once a deed is recorded, it is not subject to alteration, especially by some action such as you describe. It actually is not subject to change in such a manner once it is delivered to the grantee unless the grantee allows it and the grantor allows it. If that would be the case, a new deed really should be written if such a change like that is desired.

Once the deed is recorded, it's a matter of public record. Generally to make such changes once a deed is recorded, either a corrected deed is also recorded or a separate deed transferring the involved property back to the grantor or such so the end product is what was intended in the original deed would happen

the only thought I have on that is that it was considered a corrected deed and registered as such. That is something you would have to research if you want to get that deep into it.

1. Is there an express easement by virtue of the language that was not crossed out on the deed?

sure, for exactly what is described which, accepting the crossing out of information is somehow valid, nothing.

2. If not, can a case be made for an implied easement?

yes but it would likely be expensive and not a winning one. As you were told, the prior owner of the property was given permissive use of the current drive. Permission can be revoked.

3. Would title insurance cover easement disputes?

dispute? what dispute? There is no easement so title insurance is not going to pay for you to fight for one.

4. Are easement issues a valid reason to lower an offer to purchase? (This is a Freddie Mac house)

if there was an easement issue, you would want to address it prior to the offer. There is no easement issue here other than one you are attempting to make.

5. How much time, energy, money, pain are easement disputes typically?

anywhere from very little time, almost no energy, no money, and little pain to a lifetime, all one has, more than I have earned in my life, and figuratively more pain than I ever care to experience.

There is no typical. Each situation is different from every other situation due to the human factor.

6. What if farmhouse B owner puts up gate, fence, etc.? What are my remedies?

until/unless you own the house; none. Once you own the house, heading to court is the remedy, or at least where to seek the remedy. From what you have said, it will cost you a lot of money to find out you lost.

She wants new owner of farmhouse A to put in new driveway (could be done-house fronts road, but would be ugly and expensive).

Here is the killer: since A fronts the road, there is little to no chance of forcing an easement allowed. Especially since the use of what you see as an easement was an easement in gross or license, and due to the road frontage, you have no argument to demand an easement.

the only argument I see as a possibility is the recorded deed, with the crossed out information, is not valid and the information that is crossed out is enforceable. I see a lawyer buying a new boat and maybe even the cabin on the shore with the proceeds from that argument.

If you aren't interested in that road, presume you will have to put in your own drive where it would be ugly and expensive.