How Can Woman Get Utility Company to Remove Unrecorded Easement?

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“I am having an issue with the utility company in NYS. The title was searched, and there was no recorded ROW or Easement with the Town or County. I contacted the company to have them remove the pole and now they are saying they have a notarized unrecorded document granting them easement dating back to 1967. Is this a legal easement, and am I now out of luck with them moving it? Thank you for your assistance.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

The short answer is you are probably “out of luck.”

An easement, like any other transfer of property, is actually an agreement between the two parties to the agreement.  Recording is, in most jurisdictions, not a requirement for the transfer of property to be valid and enforceable–between those two parties.  So, whoever granted the easement to the utility is most likely bound by that agreement.

I assume you aren’t the person who granted the easement, however, so you may reasonably ask why you’re stuck with it.  Well, when you sell land, you can only sell what you own.  When the person who granted the easement sold the land, what he was selling is the land minus an easement.  And so on for each owner up to you.

So, unless there is some exception to the above general rule, the utility’s argument that they have an enforceable easement is probably a good one. You can certainly investigate the validity of the document they are presenting, and why it didn’t get recorded, but assuming it’s legitimate, they can probably enforce it.

Now, in some circumstances, you might have a claim against the person you bought the property from for a failure to disclose the non-recorded easement. However, depending on your local laws, be aware that something as visible as a power pole may put you on notice even without a recorded agreement.



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Author: House Attorney

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