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Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 36622
Experience:  16 years real estate, Realtor. Landlord 26 years
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While not described in my title report, So. California Edison

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While not described in my title report, So. California Edison has advised me that they have a 30 foot easement, recorded in 1925, which runs thru my swimming pool. Our property is adjacent to Edison transmission lines and there are several ways Edison has historically accessed and serviced their towers. We have owned our property for 25 years and until 2005, Edison used our driveway for access. In 2005, we realized that there was no easement described in our title report, we asked Edison for a copy of their easement, which they could not provide and we asked them to stop using our property for access. This week, Edison has claimed in writing that they now have proof of a 1925 document and they want to assert their rights. We have been thinking about selling and now are concerned about how to proceed with this problem, including whether advising the title company will further complicate this problem. Any suggestion?
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
I hate to say it, but you have to disclose it. Once you have knowledge of a material fact that would influence any potential buyer's decision to purchase, you have a duty to disclose it to them or you run the risk of being sued for fraud and misrepresentation later when they find out about the easement.
The utility would most assuredly tell any new owner that you were aware of the easement and had butted heads over it in the past. Since theis is a material fact that would potentially affect value, if you didn't disclose it, the buyer could sue you for the difference in what an appraisal stated the property was worth with the easement vs. what it is worth without.
However, until they actually provide proof that they have a legal easement, then this is all just talk. So you can legally deny them access until they prove they have that right. But as soon as they do provide proof, you would be obligated to disclose it as well.






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Customer: replied 3 years ago.

I am already aware of my disclosure issues. My interest in is wanting to know what, if any rights I have against the Edison assertion of a 1925 easement which is not disclosed in my title report. Once they provide me with proof of a real and recorded document, do I have strong defenses to prevent them from forcing there way through my property, including a swimming pool? If strong, what are they, or, if relatively weak, why? Thanks. Are you allowed to make recommendations for lawyers to use?

Ok, I went down the path that you were asking about any duty to disclose or not. With regard to the undisclosed easement, if it is indeed a legitmately recorded easement, then you would have a claim against your title insurance company for missing this on the title search if it was actualy recorded. This should have been referenced in any deed for the property as well as in any easement book at the county clerk's office.
But if the easement was actually recorded, then it would be valid whether you were aware of it or not. When an easement is recorded, it "puts the world on notice" of its existence and would do so for all time. So basically, if it was properly recorded, then someone along the way dropped the ball in researching your title because it should have been in each deed from the time the property changed hands the first time after it was recorded.
If the easement wasn't recorded back in 1925, then you would have a good argument that you were an innocent purchaser in good faith and would have purchased the property for valuable consideration without actual notice of a prior unrecorded easement. It would then be inequitable for you to be held subject to an easement that was never recorded and which you had no notice of.
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