5.00.8 Waiving An Easement Exception

Basic Methods

The basic methods of waiving an easement exception are as follows:

  • The recording of a valid abrogation agreement.
  • The recording of a proper release.
  • A nonappealable determination entered by a court of competent jurisdiction decreeing the termination, extinguishment, or invalidity of the easement.

However, it is not always an easy task to determine the validity or efficacity (for the purposes of waiving the exception) of these instruments. It is often necessary for lienholders and other interested parties to join in the execution of these instruments or to be named as defendants in the judicial proceedings, and it should also be noted that in the lack of compliance with these requirements might impede the waiving of an easement exception unless duly executed releases are later obtained from the necessary parties.

Doctrine Of Merger

Unless you have received written approval from the National Legal Department, the doctrine of merger should not be relied upon when asked to waive an easement which appears as an easement exception to the title.

A proper instrument showing the acquiescence to the merger must be made a matter of record before the exception is waived.

Abandonment

Physical abandonment should not be relied upon when waiving an easement which appears as an exception to the title.

Other Occurrences

The happening of any of the following occurrences should not be relied on as the sole basis for the waiving of an easement which appears as an exception to the title:

  • Expiration of the term or duration.
  • Occurrence of stated event;
  • Completion of purposes;
  • Violation of conditions;
  • Change of conditions;
  • Nonuser;
  • Inconsistent Acts;
  • Adverse possession;
  • Destruction or alteration of building;
  • Sale for taxes. Note: There is a division of authority among the states on the question of whether the purchaser at a tax sale of land subject to an easement takes the land free of the easement.

Under Michgian law, where a servient tract was sold for taxes prior to December 14, 1990, said sale will serve to extinguish an easement between private parties. MCL 211.67b. However, this rule should not be relied upon in waiving easements that encumber the insured land.

Subsequent to December 14, 1990 any land sold for taxes shall remain subject to any visible or recorded easement. MCL 211.67b. Of course, it is difficult to determine that an easement was visible as of the date of tax sale. As such even for tax sales after December 14, 1990 prudent underwriting requires that an easement be recorded in order for it to survive.

Possibility of An Easement Being Extinguished By the Foreclosure of a Prior Deed of Trust

This possibility should not be relied upon for the purposes of waiving an easement which appears as an exception to the title.

Instead, the easement must be shown in the commitment together with the following language:

The foregoing easement may have been eliminated by the foreclosure of a prior (deed of trust) (mortgage) recorded in Book _____ , Page _____ of the deed records of ___________ County.

Possibility of an easement being extinguished by the foreclosure of later real estate tax lien.

Note: In many states, an easement on or over the servient estate will be extinguished if a tax sale of the servient estate occurs and the prior easement is not excepted. However, in no state should this rule be relied upon in waiving easements that encumber the insured land.

Under Michigan law, where a servient tract was sold for taxes prior to December 14, 1990, said sale will serve to extinguish an easement between private parties. MCL 211.67b. However, as stated above, this rule should not be relied upon in waiving easements that encumber the insured land.

Subsequent to December 14, 1990 any land sold for taxes shall remain subject to any visible or recorded easement. MCL 211.67b. Of course, it is difficult to determine that an easement was visible as of the date of tax sale. As such even for tax sales after December 14, 1990 prudent underwriting requires that an easement be recorded in order for it to survive.