Made aware of a utility easement a year on

Question

Assume that around 1911 a utility sewer is laid down on private land with an easement that was limited “until a public sewer pipe be built”, with the document being properly filed. Such a construction never happens and the easement eventually is forgotten to be put on the title documents to the house on the register.

Now, the house is sold without notice of that easement. It comes back up when the water company actually comes along a year after the sale to do some work on the pipe they have the easement to. However, a copy of the easement document can be located, dated and filed in some old drawer of some registry.

Can this easement be revoked or is it forever?

Answer 1

While this question was initially posed as a request for legal advice, I've stated some general principles of this kind of situation generically.

You are deemed to have "constructive notice" for legal purposes of all documents filed in the public record pertaining to your property whether you know it or not.

You are also on notice of anything that a reasonably informed person could assume to exist from observable facts (like that existence of municipal water and sewer service) upon an inspection of the property. In terms of reasonable expectations, almost every urban home is subject to multiple utility easements. If your home has (or most homes in your neighborhood have) municipal water service, municipal sewer service, electrical service, and cable or telephone lines, there are almost certainly easement in place for all of these things.

Typically, in a contract for the purchase of real estate, there is a fixed deadline for you (or a title company on your behalf) to review the public record to find what is there. If you don't object by that deadline to any title issues, you can't get out of the real estate contract or undo it.

Typically, the deed from the seller will contain an exclusion from the warranty of title for "all easement of record."

If the title insurance policy contains an exclusion for easements, you can't make a claim against that title insurance policy.

Even if there weren't an easement in the public real property records, anything that has been there since 1911 would benefit from a "prescriptive easement" which is the equivalent of adverse possession a.k.a. squatter's rights, for easements. In New Jersey, for example, the prescriptive easement time period is usually twenty years and never more than sixty years.

Furthermore, utilities usually have the power, delegated to them by the government that grants them permission to operate or by the state, to create new easements at the very modest price associated with a reduction in fair market value caused by the easement. This is often estimated to be half of the fair market value of the unimproved land per square foot times the actual square footage occupied by the utility when it isn't working on its infrastructure.

Easements, once established, run with the land, and generally can't be removed without the permission of the party for whose benefit the easement is granted a.k.a. the owner of the dominant estate (in legal terminology, the utility's rights in the easement are called the "dominant estate" and the home owner's rights in the property subject to the easement are called the "servient estate").

There may be implied in law duties of someone using an easement to restore damage caused after using it, but it wouldn't be worth suing over that for a bit of displaced grass and a rose bush.

Answer 2

Sewers have statutory easements

new-south-wales

That is, wherever the sewer lies, it has an easement that doesn't have to be registered. This does not apply to drains.

A sewer is a pipe or conduit for sewage owned and operated by a statutory body tasked with providing sewerage services; a drain is a pipe for sewage owned and operated by a private person. The drains from your house usually connect to a sewer.

Water utilities have the same benefit for their water mains. However, gas, electricity, and telecommunications utilities don't. Why that is is a historical accident - water and sewerage utilities already existed when the land titles system was developed in New South Wales, but the others are Johnny-come-latelies.

Answer 3

In the Netherlands, you're out of luck.

You're supposed to do proper research about such things before purchasing the property, and property is purchased as is (with a mandatory clause about hidden defects, but that doesn't include things like easements and improper zoning, only construction flaws in the house basically).

That's one reason there is a mandate to use a professional for such transactions, and it's their job to do the research and do it properly. This can turn up things like unlisted easements, improper property boundaries, zoning violations, which can then be corrected in the public record, and may or may not lead to the purchase falling through or the purchase price being adjusted to account for them.

And those notaries do tend to do a proper job. And their job is needed as sometimes mistakes in the public record are found that even the selling party wasn't aware of. For example the notary I used when buying my house told a story where he'd (on another transaction) had found that the garden shed was not on the plot of land being sold, it was zoned separately. The public zoning record was adjusted, the plots were merged, problem solved. Had he not found that, the house'd have been sold but the garden shed would still have belonged to the previous owner.