Is There An Easement on my Property?

Recently, in Neely v. Fields (COA 22-30), our North Carolina Court of Appeals held that an exception for “covenants, easements, and restrictions of record” included in the legal description of a deed was sufficient to except all easements that are a matter of public record within the Grantor’s chain of title even when no further exception for easements of record is included in the covenants clause.

So, what does that mean for your property?  If there is a reference in your deed stating that your property is subject to “easements of record”, that means any easement in your chain of title (all the way back to the grant from England) encumbers your property, even if not specifically referenced in your deed.  This emphasizes the need for a thorough title search and title insurance.

The Court also held that the “drafter of a general warranty deed does not commit legal malpractice in failing to include an exception to an easement of record in any other part of a general warranty deed if the exception has been noted within the general warranty deed’s legal description. Summary judgment is therefore appropriate in a legal malpractice action arising out of an alleged failure to include an exception for easements of record in the covenants clause when such exception is provided within the general warranty deed’s legal description.”

This seems to be a divergence from North Carolina’s long held requirement that exculpations must be specific to be enforceable, see Perry v. Wiggins, 197 N.C. 502 (N.C. 1929).  [Excerpts from Chris Burti, Vice President and Senior Legal Counsel for Statewide Title, Inc.]

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