Title issues
Easement or right of way not shown of record
A driveway, a utility line or a shared alley can burden a property without appearing in ACRIS. How the exception arises, what cures it, and who pays.
Can an easement bind a property if it was never recorded?
Quick Answer
Survey · Commonly escrowed around so the deal closes on time
How is it found?
- The survey shows a driveway, walkway, alley or utility line crossing the parcel and serving someone else
- The recorded description references a right of way whose grant never appears in the chain
- A neighboring lot is landlocked, which raises an easement by necessity whether or not anything was recorded
- A physical inspection finds meters, vaults, conduits or drainage serving an adjoining property
- The offering plan, the declaration or an old subdivision map describes shared access nobody ever recorded separately
How is it cured?
- Confirm what actually burdens the land by reading the survey against the recorded description, since an easement of record and an easement in fact are two different exceptions
- Where the parties agree on the right, record a written easement agreement that fixes its location, its scope and who maintains it
- Where the use is unwanted and recent, address it before it ripens, because a prescriptive right is created by time
- Where the easement is real and permanent, price it: an access easement across a rear yard changes what the property is worth
- Where the burden is limited and documented, ask the insurer to insure over it or to narrow the exception rather than accepting a broad one
- Where the seller and the neighbor disagree, escrow against the resolution instead of closing on an undefined right
What does clearing it cost?
Documenting an agreed easement is drafting and a recording cost, so the cooperative case is inexpensive. The cost lives elsewhere: in the negotiation with a neighbor who wants payment for a release, in the value adjustment when the burden is permanent, and in litigation when a prescriptive claim is contested.
Who pays for it?
The seller carries the cure where the seller contracted to convey free of undisclosed encumbrances. Where the easement was disclosed in the contract and the buyer accepted it, the buyer takes the property subject to it and the cost shows up in the price rather than at the closing table.
Why does the title policy except matters a survey would show?
Because the search reads the record, and the record does not see the ground. A prescriptive right of way leaves no instrument to find. That gap between what is recorded and what exists is exactly why an accurate current survey is ordered, and why the survey reading is done before the exception is accepted.
What is an easement by necessity?
It arises when a parcel is divided in a way that leaves one piece with no access to a public road. The law implies a right of access over the retained land, because the alternative is land nobody can reach. Nothing needs to be recorded for it to exist, which is why it is found by looking at the map.
Can an unrecorded easement be removed?
Sometimes. A written release from the benefited owner extinguishes it, and a restriction that has lost its practical purpose can be extinguished by the court under the Real Property Actions and Proceedings Law. Neither is quick, so the working answer before a closing is usually to define the easement rather than to remove it.
What else should you read before closing?
In the glossary
- EasementA right to use part of another owner's property for a specific purpose. Easements appear as exceptions on a title report and generally survive a sa...
- Right of wayAn easement granting passage across land. Recorded rights of way run with the property and are listed among the exceptions on a title report.
- SurveyA surveyor's drawing of the parcel, its improvements and any encroachments. Lenders on houses and townhouses generally require a current one or a s...
- EncumbranceAny interest in the property held by someone other than the owner, whether monetary such as a mortgage or lien, or non-monetary such as an easement...
- AppurtenanceA right or improvement that passes with the property when title transfers, such as an easement benefiting the parcel, a parking right or a fixture ...
- Title exceptionA matter the title policy does not insure against, listed on Schedule B. Some exceptions are removed before closing and others are simply accepted ...
- Schedule BThe requirements and exceptions section of a title commitment. Requirements are cleared before closing; exceptions remain uninsured unless removed ...
Questions this raises
- What does title insurance cover?Old liens, recording errors, forged deeds, undisclosed heirs, easements: what a New York title policy covers, what Schedule B excludes, and how cla...
- What happens if the title search finds a problem before closing?Schedule B-I requirements are the punch list, not a dead deal. How New York closings clear old liens, missing satisfactions and name hits before th...
- Which ALTA endorsements are common in New York?ALTA 9, 8.1, 22, 17, plus condominium and survey endorsements: the TIRSA endorsement set that shows up on most New York residential and co-op closi...
Title issues
- Boundary and survey encroachmentA fence, a stoop or a wall over the line is a survey exception, not a paperwork error. How encroachments are found, cured, insured around, and paid...
- Estate in the chain of titleWhen a deceased owner sits in the chain, title turns on the estate papers. What the search needs, how the gap is cured, and who pays for the delay.
- Unpaid water and sewer chargesWater and sewer arrears become a lien on the land in New York City. How the final reading works, how the charge clears, and why it is usually escro...
Building types
- Townhouse and 1-4 family condo declarationA small building divided into condominium units, where outdoor space, party walls, multiple-dwelling registration and the certificate of occupancy ...
- Mixed-use condo with commercial unitsA condominium holding both residential and commercial units, where the declaration allocates common charges, voting rights and use restrictions bet...
The statute itself
The violation code
Have a closing coming up?
Tell us about the transaction. An attorney reads every intake form and responds the same business day.
Legal Disclaimer: This page is general information about New York practice. It is not legal advice, it does not account for the terms of any particular contract, building or transaction, and reading it does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.