Marin County Easement Advisory - Part 1

Marin County Easement Advisory - Part 1

  • Kevin Kearney
  • 02/8/22

I’ve been in the business for 20 years now and I have not had as many issues with easements as I’ve had in the last four years. I thought it was worth taking some time to discuss issues.   

We will start off by defining an easement and talking about how it affects your real estate purchase or sale: 

Wikipedia definition: An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B"

The most important issue to discuss is UNRECORDED easements or permissions to use another property without it being in writing. Verbal agreements if you will. These are fine between two owners, but as soon as one sells or changes their mind, it can be a problem. This has been the issue that has caused the most grief for my clients recently. I will do this in a three part series. Two of the situations that I will describe are clients who bought their house with another realtor and then are selling with me. The third situation is something I ran into personally at my property in Mill Valley.

The first one is a great example of why you need to have a great selling agent and a great agent representing you as a buyer. A newer friend of mine had bought her house through a discount broker many years ago. When you look at the multiple listing service photos and what she was sold, it included a large patio with a nice retaining wall behind it. In the photo above, you can see the blue arrow which is the actual property line. Beyond that was a vacant lot that was about to be built. When the developer surveyed the land and they started drafting their plans, They realized that the property line was actually about 8 foot into the patio that my client now was realizing she did not own. When she bought the house the agent on both sides had assured her that there was an easement there that had been there for 100 years and would not be changed. 

This is where the story gets hard. My client who bought a house that she loved with the yard that she loved is now faced with a situation of losing part of that yard or having to pay for an exclusive use easement to keep it. She ended up paying $97,000 plus survey and attorney fees for the exclusive use easement of some thing that she thought she already owned. Since I started working with her, we looked into filing a claim with the title insurance company to see if she can be reimbursed for part of that money but she had no idea that was even an option. Turns out she had waited too long to file and she was not eligible for a reimbursement.  

The reason I’m telling you this is that it is important to have an experienced and knowledgeable realtor working on your behalf to protect your interests in your real estate transaction. No one is perfect and people make mistakes, but you need to know that you can count on them for support when you need it. Please call me at 415-297-3874 if you have any specific questions about a potential easement or land use situation. We can get the right people involved.


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