Introductory Comment: This Chapter is applicable only to appurtenant easement interests which benefit real property. In many ways, determining the nature and extent of appurtenant easement interests poses a much more difficult problem for closing attorneys and title examiners than does the examination of title to the fee simple interest involved in a conveyance or other real property closing transaction. There are also significant distinctions between residential and commercial properties when easements are involved. In most residential transactions in metropolitan areas of the state, due to subdivision and platting regulations, it is likely that all necessary easements were established by the developer when the property was subdivided. However, this may not be the case with planned commercial developments such as shopping centers, office parks and industrial or warehouse projects, since many such projects are developed over much longer periods of time than is typical with residential subdivisions, and in many instances the examiner must use special care to insure that easements for shared facilities, such as storm water drainage and retention ponds, have been properly established, and released from any tract financing or other debt encumbrances. In metropolitan and urban areas where land costs are high, commercial shopping centers and similar developments are likely to have shared storm water drainage systems necessitated by governmental regulations that require storm water run off to be managed on site, private easements for water and sewer lines within the boundaries of the overall commercial development, cross access easements to access curb cuts [which tend to be limited, especially in retail shopping centers which are generally located on major thoroughfares under the control of the DOT, which limits access rights to certain designated points] and also grants of easements for “vehicular parking” (which are often found related to shopping center outparcels, to meet zoning requirements.)

38.1 Nature and Extent of Title Examiner’s Duties with Respect to Appurtenant Easements

The closing attorney should furnish the title examiner a copy of the real estate sales contract, loan commitment, or some other source material containing an adequate legal description of the property interests as to which title is to be examined. The closing attorney and title examiner should work as a team where the closing attorney does not examine title. The examining attorney should, unless otherwise instructed by the client, verify that the property has direct access to a public road, or to a valid access easement allowing ingress and egress to the real property. The examining attorney is not required to verify access for utility services such as gas, electricity, water, sewer or cable television unless specifically requested to do so by the client. If, however, the examiner in the course of examining title becomes aware of the fact that the property in question is served by an easement of which the client may be unaware, the examiner should so advise the client and determine if the client requires certification as to such interest.

Comment: Under many circumstances, the title examiner is likely to find information pertaining to easements in the deed records, which may not otherwise come to the attention of the closing attorney, or client, unless specifically disclosed by the title examiner. Likewise, the closing attorney is more likely than the title examiner to have the benefit of unrecorded plats, appraisals, or other materials in the loan and/or closing package which may disclose that the property is served by appurtenant easements which will not, in the ordinary course of examination, come to the attention of the title examiner. This is due to the means by which easements are created, and the fact that appurtenant easement interests need not necessarily be specifically described in the deed in order to pass with the conveyance. There are four (4) methods by which easements may be created under Georgia law: (i) express grant, (ii) prescription, (iii) implication, and (iv) condemnation.

A. Express Grant.

An easement which arises from an express grant is the least troublesome from the standpoint of the title examiner or closing attorney. Express grants of easements include those specifically described in warranty deeds conveying the appurtenant property in fee, recorded grants of easements or easements which are shown on a recorded plat and incorporated by reference into the warranty deed. Title to the property described in such easements should be examined, and conveyed, on the same basis as the fee.

B. Prescription.

Since an easement constitutes an interest in real property, the statute of frauds (O.C.G.A. Section 13-5-30) usually applies (Barton v. Gammell, 143 Ga. App. 291, 238 S.E.2d 445 (1977); however, an exception to the requirement for a writing exists with regard to parol licenses and easements by prescription or implication. The problem posed for an examiner, and closing attorney, is that since such easements are not specifically described in a grant or writing, the nature and extent of such easements may be unclear, especially to an examining attorney who relies almost exclusively on the record. It is in the nature of an easement by prescription, or parol license, that same do not initially appear of record (although these may be later included in a description after having become valid easements as allowed by law), and it is probably better practice for the closing attorney to incorporate a specific description of such rights into the Deed, once the nature and extent of such easements (derived from a parol license or prescription) are determined. An easement by prescription requires twenty years under O.C.G.A. Section 44-5-163. In Richard Row v. John Doe, 233 Ga. 691, 212 S.E.2d 854 (1975), involving an alleged prescriptive title to maintain a garage that encroached on the property of the Plaintiff in Ejectment, it was held that the Defendant could not claim prescriptive title by adverse possession for twenty years, where the undisputed evidence established that the garage had been in place for no longer than seventeen years. Note that the Plaintiff in Row must have had actual notice of the garage, which did not create an estoppel. Although prescription under color of title only requires seven years, to have color of title the easement must be specifically described in a document of record. (Gilbert v. Reynolds, 233 Ga. 488, 212 S.E.2d 332 [1975]). Even if prescription had commenced, an inchoate easement can not be passed to a grantee (Olsen v. Nobel, 209 Ga. 899 76 S.E.2d 775 [1953]). An inchoate prescriptive (fee) title may be transferred by the possessor to a successor; but inchoate rights to an easement do not pass by deed unless specifically described therein. Therefore an examiner cannot rely simply on the passage of time, without more, in cases where a prescriptive easement is involved.

C. Implication.

Easements by implication are not favored under Georgia law, and can only arise in favor of those claiming under a common grantor (see Burk v. Tyrell, 212 Ga. 239, 91 S.E.2d 744 [1956] and Farris Construction Company, Inc. v. 3032 Briarcliff Road Associates Ltd., 247 Ga. 578, 277 S.E.2d 673 [1981]). Easements by implication, under Georgia law, can only arise in favor of the Grantee (since easements must be expressly reserved in the grant if they are to be retained by grantor). Easements by implication are not always readily detectable by a title examiner.1 Where easements are not created by express grant, same pose great dangers for both examiners and closing attorneys. Therefore, due to the fact that there may be nothing of record to indicate the existence of the easement to the examiner, it is important for the examiner to adequately define the extent and nature of the easement in order to run title, which may require affidavits and will require a current survey.

D. Condemnation.

Easements acquired by condemnation are similar to those obtained by express grant in that same are specifically described in a recorded document, only in this instance the “grant” is involuntary. Locating easements acquired by condemnation may be a problem for the examiner if the party acquiring same fails to cause a copy of the decree to be recorded in the deed records as the standard docket search period used by most examiners is seven to ten years. Most easements acquired by condemnation will not be appurtenant easements, as the power of condemnation is largely limited to governmental entities and certain classes of utilities, except that any land owner otherwise lacking access may condemn a private way for access to a public road, in accordance with applicable statutory procedures.

38.2 Merger

One problem encountered when examining title to easements is the doctrine of merger. Unlike ownership of property in fee, special care needs to be taken by the examiner to verify that existing easements which may have merged if the property comes under common ownership after the establishment of same, have been properly reestablished if the tract is later divided.

Comment: Wherever a greater and lesser estate meet in the same owner, the lesser estate is merged into the greater (O.C.G.A. Section 44-6-2). It is axiomatic that one cannot have an easement upon his own property, for the lesser estate, represented by the easement, will be merged into the greater fee. In Burk v. Tyrell, 212 Ga. 239, 91 S.E.2d 744 (1956), it was held that unity of possession of both the dominant and servient estates is inconsistent with adverse use, and therefore prescriptive use would be terminated until after the severance of the two estates. Thus, an examiner should use special care where there is an unrecorded easement, parol license, or rights of prescription, to confirm that the property has not come under common ownership. In Muscogee Manufacturing Company v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028 (1906), it was held that if two estates in the same property unite in the same person, and it is contended that no merger took place, the person making such contention must allege and prove facts negativing the existence of such merger.

38.3. Debt Encumbrances

The examiner should in all cases verify that, when the easement interest was created, any existing security deed on the property over which the easement lies was released, or a consent was obtained from the lender to avoid termination of the easement by a later sale under power.

Comment: A valid foreclosure sale under power in a security deed is equivalent to a judicial sale under decree of a Court of Equity and not only extinguishes the right of redemption, but divests all junior encumbrances on the property and also terminates the interests of persons claiming under the grantor (Federal Land Bank of Columbia v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941).

38.4 Effect of Deed Recitals on Easement Rights

Many deeds contain recitals relative to “easements and restrictions of record”. Such “subject to” recitals do not in and of themselves create easements, as these are only limitations on the grantor’s warranty. Valid appurtenant easements existing as of the date of the conveyance are automatically conveyed with the fee simple parcel as appurtenances; however, for the reasons set forth in this title, it is the better practice to specifically describe all easements in the deed whenever possible to avoid problems with identification and also to alert future examiners.

Comment: Recitals in deeds bind only the parties to such conveyances and their privies; and are not evidence for or against anyone not claiming under the said deed (Tift v. Golden Hardware Company, 204 Ga. 654, 51 S.E.2d 435 [1949]). In accord is Muscogee Manufacturing Company v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028 (1906) wherein it was held that “a mere grant of property will not create any appurtenances” (Id. at page 227). In Barton v. Gammell, 143 Ga. App. 291, 238 S.E. 2d 445 (1977), it was held that an “easement can be created only by grant, or by implication or prescription...whereas a license may be created by parol, or by an act of the licensor sufficient to show his consent” (Id. at page 293). The Court went on to note that since an easement created by agreement constitutes an interest in land, it required a writing under the Statute of Frauds, and was otherwise subject to the rules governing the construction of deeds.

38.5 Parol Licenses

Parol licenses might also be termed easements by estoppel. The classic example of a parol license arises when an adjoining land owner authorizes his neighbor to construct and pave a driveway on the corner of his property, and then tries to block the neighbor from use of the driveway after said neighbor had expended funds in improving the driveway based on the parol license. However, parol licenses are not favored and are very difficult to prove. Comment: In Berolzheimer v. Taylor, 230 Ga. 595, 198 S.E.2d 301 (1973), the Court held that a statute making irrevocable parol licenses where the licensee has incurred expense in exercising the license would not apply in the case of a mere implied license. The facts, as developed, showed that the Berolzheimer family had been using the dock in question for over 60 years, had assisted in maintaining the dock, and had even re-built same following its destruction by Hurricane Dora in 1964 at a cost of $1,592.65. The Court ruled that all that activity was not sufficient to establish an interest in the land of Taylor since there was no evidence that a parol license was ever granted, and it was not possible to establish irrevocable property rights in another’s land under an implied license.

38.6 Notice

Notice has no applicability until a valid easement is first established. The issue of notice only relates to such rights as the adverse party has already acquired. There is no authority for the proposition that notice, in and of itself, creates rights where none are shown to have been established by some method allowed by law.

Comment: If mere notice, without more, established easement rights, then the more egregious the trespass by which the claimed easement was created, the more notice would have to be presumed. But were this the case, all rules by which an easement may be established become meaningless, and title by conquest would be the method of choice.

38.7 Charges Imposed for Use of Easements

If appurtenant easements are found, the examiner should attempt to determine if any formal arrangements have been made for repair of the easement, and if so, if there are established charges and a mechanism for collecting the charges.

Comment: In most cases where an easement is established by a written grant (such as a construction operating and reciprocal easement agreement for a shopping center), the nature, extent and liability for charges for the maintenance of the easement will be addressed therein. However, there are many other circumstances in which easements can exist, where no such guidelines exist for the examiner or the closing attorney. As a general rule under Georgia law, each party must pay to maintain the easement in proportion to such party’s usage. However, this is easier to state than to determine. In any event, the examiner and closing attorney should be alert to these issues and should advise the client if the duty to maintain the easement is unclear.

38.8 Real Estate Taxes on Easements

The examining attorney should verify that real estate taxes have been paid currently through the year in which the easement is created. Once the examining attorney has determined that a valid easement exists burdening adjacent property, it is not necessary to check the status of either taxes, or security deeds, affecting the adjacent property upon which the easement is located, as any such rights would be subject and subordinate to the previously created easement.

38.9 Environmental Issues Relating to Easements

If the examining attorney determines that the property is benefitted or burdened by a retention pond or similar facility, the client should be advised that in circumstances where the pond or similar facility becomes contaminated, the governmental entity seeking to enforce the environmental laws generally presumes that the owner of the land on which the pond or like facility is located is the party primarily responsible, and that the users of the easement are secondarily responsible for the cleanup. The client should be advised of such potential problems.