Real Estate · Title Issues · Easements

Found an Easement After Closing: You Own the Problem

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How a Recorded Easement Survives Closing Without Anyone Knowing

A recorded easement is constructive notice to every subsequent purchaser under Pennsylvania law. That means the law treats you as having known about it whether you actually read the deed or not. The recording system is designed to work that way — every instrument recorded at the Allegheny County Recorder of Deeds is deemed known to anyone who later acquires an interest in that property.

In practice, easements surface after closing for three reasons. First, the title search did not go back far enough. A utility easement recorded in 1955 may predate a standard thirty-year search period. Second, the easement was recorded in a way that a reasonable search would miss — indexed under a prior owner’s name, recorded against an adjacent parcel with a note referencing the subject property, or buried in a subdivision plan rather than in the deed chain itself. Third, the easement existed and was discoverable but nobody flagged it — the title examiner missed it, the title commitment listed it in the exceptions and nobody read the exceptions, or the seller knew and said nothing. Similar title problems can arise from boundary disputes surfacing at closing when a survey shows the fence or structure is not where the deed says it should be.

Each of those causes leads to a different remedy. A missed easement that should have been found is a title insurance claim. An easement the seller knew about and did not disclose is a seller misrepresentation claim. An easement that was in the title commitment exceptions and the buyer waived is the buyer’s problem alone. Identifying which situation applies requires reading the title commitment, the seller’s disclosure, and the recorded instruments carefully.

The Title Insurance Claim

Title insurance covers losses arising from defects in title that existed at the time of closing and were not excepted from coverage. A recorded easement that was not listed in the title commitment’s Schedule B exceptions and that diminishes the value or use of the property is a covered loss under a standard owner’s policy.

The claim process requires notifying the title insurer promptly after discovery, providing documentation of the easement and the loss, and allowing the insurer to investigate. The insurer has the option to cure the defect — by negotiating a release of the easement, obtaining a court order, or otherwise eliminating the encumbrance — or to pay the insured’s loss. The measure of loss is typically the difference between the property’s value with and without the easement, or the cost to cure if cure is possible and less expensive than the diminution in value.

The title commitment’s Schedule B exceptions are the critical document. If the easement was listed there — even in general language — the insurer will argue the buyer accepted the risk at closing. Pennsylvania courts have interpreted Schedule B exceptions narrowly in some cases, but a clear specific exception is difficult to overcome. Reading the title commitment before closing, not after, is the only way to catch this problem in time to negotiate.

The Seller Disclosure Claim

Pennsylvania’s Real Estate Seller Disclosure Law at 68 Pa.C.S. Chapter 73 requires sellers of residential property to disclose known material defects and encumbrances. A known easement that materially affects the use or value of the property is an encumbrance the seller is required to disclose. A seller who knew about the easement and did not disclose it has violated the disclosure statute.

The remedy for a disclosure violation is a claim against the seller for damages — the loss in property value, the cost to redesign or replat around the easement, or in some cases rescission of the sale if the easement is material enough to justify unwinding the transaction. Rescission after closing requires court action and is rarely granted unless the undisclosed encumbrance fundamentally changes what the buyer purchased.

The practical problem with seller disclosure claims is proving the seller knew. A seller who genuinely did not know about a 1955 easement buried in the title chain has not violated the disclosure statute — the obligation is to disclose known defects, not to research the title. If the seller owned the property for years, received municipal notices related to the easement, or had the easement flagged in prior transactions, knowledge is easier to establish. If the seller purchased recently and the easement was equally hidden in their title search, the disclosure claim is weaker.

Analyzing the Easement Itself: Scope, Validity, and Abandonment

Before pursuing any claim, the easement itself needs to be analyzed. Not every recorded easement is enforceable. An easement can be extinguished by abandonment, merger, expiration of its stated term, or a court finding that the original grant was defective. An easement that has not been used in decades, where the dominant parcel no longer exists as a separate entity, or where the original purpose has become impossible may be challengeable in a quiet title action.

The scope of the easement also matters. A utility easement recorded in 1955 for “telephone line purposes” may not cover fiber optic infrastructure. A drainage easement that specifies a ten-foot width does not authorize a twenty-foot grading operation. An access easement for pedestrian use does not authorize vehicular traffic. Scope disputes are litigated regularly in Pennsylvania courts, and an easement that appears to block a proposed use may be narrower than it first reads.

An easement analysis requires pulling the original recorded instrument, tracing the dominant and servient parcels through the chain of title, determining whether the easement is appurtenant or in gross, and evaluating whether any of the standard termination grounds apply. That analysis may reveal that the easement is less restrictive, or less enforceable, than it appeared when the permit officer flagged it.

What the Easement Actually Restricts: Reading the Language

Many post-closing easement problems are less severe than they first appear because the easement language is old, vague, or narrower than the permit officer assumed. A standard utility easement prohibits permanent structures within the easement corridor but typically does not restrict grading, landscaping, or temporary uses. A drainage easement requires maintaining the drainage path but does not prevent use of the rest of the parcel. An access easement gives the holder a right of passage but does not prevent the owner from using the same area for other purposes consistent with the easement.

The permit officer who flagged the easement applied a conservative reading to protect the municipality from liability. That reading may be more restrictive than what the easement actually requires. An attorney’s analysis of the easement language against the proposed use may clear the way for the permit even without resolving the title question.