Easement Problem Not Disclosed By Title Company
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 745
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader recently bought
a home and the title company did not disclose an easement in the backyard. Now
the reader is battling with the city over his right to trim trees. Ilyce and
Sam explain why he will not win a suit over this undisclosed easement.
Q: A title company insured my home and failed to disclose a slope easement
in favor of the City.
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Eucalyptus trees growing on this back slope are constantly shedding leaves
in my swimming pool/yard.
An appraiser retained by the title company says that the easement does not
diminish the value of my property. But it has a negative impact as described
above. The City has asked me to cease trimming the trees and remove rocks placed
on the slope. My control on my property has been compromised by this undisclosed
easement. The title company is not offering any compensation based on appraisal
What are my chances of successfully suing the title company in a small claim
court or do I need a local attorney who specializes in title claims?
A: The basic underlying principal of title insurance is to protect a real estate
buyer against a loss due to a title defect on the property purchased.
But you have fallen right into one of the problems many buyers discover when
they find that the title company has failed to disclose a title issue when you
purchased your home.
If you could develop and build on the easement area, you would have a better
chance in your claim against the title company. Your loss would be your inability
to develop your property due to the undisclosed easement and what that was worth.
If you buy 10 acres of land to build 10 homes and can only build 8 due to the
easement, you have suffered a loss.
If you buy a home and find that an undisclosed easement is under your garage
and the garage has to be torn down, you have a loss and have a claim against
the title company.
If your sole issue is the leaves that fall onto your pool, you have a unique
claim and probably won’t find a title company that will be sympathetic
to it. That “loss” will probably not fall within the scope of the
definitions of a loss of the policy.
Besides, you knew the trees were on the property when you bought the home and
those trees can’t be the claim for the loss, it’s the easement.
If you were planning to remove the trees and plant fruit or nut trees for your
business and later found out that you could not, you might claim that loss,
but if you are located in a single family area and can continue to use your
home as intended, the leaves falling would be no different than leaves falling
from a neighbors’ yard.
If you decide to pursue it because you have additional information, your title
claim will probably require the services of an attorney who has had ample experience
with title claims against title insurance companies.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com