Title and closing

How to handle a surprise unrecorded easement found at closing

A surprise unrecorded easement discovered just before closing can halt your deal, but it does not necessarily kill it. Understanding the immediate steps to take and who to consult can help you navigate this unexpected title issue.

November 8, 2026 · 3 min read

Immediate actions when an unrecorded easement surfaces

First, halt the closing process immediately. Do not proceed until you fully understand the nature and impact of the easement. Rushing forward can create significant problems down the line.

Contact your title company and real estate attorney right away. They are your primary resources for investigating and resolving title issues like this. Provide them with all the information you have.

Gather any documentation the seller might have regarding the easement. Sometimes these are informal agreements or older, unrecorded documents. The more information, the better.

Understanding the type and impact of the easement

Easements can vary widely, from utility access to shared driveways or even a neighbor's right to cross the property. Determine if it is a utility easement, an access easement, or another type.

Assess whether the easement is a minor inconvenience or a major impediment to your plans for the property. A small utility access might be manageable, but a large access easement across the middle of the property could be a deal-breaker.

Your attorney will help you understand the legal implications, including whether it runs with the land and if it is truly enforceable, despite being unrecorded.

Working with your title company and attorney

Your title company's role is to ensure clear title. They will investigate how the unrecorded easement was missed and what steps are needed to address it. This may involve further research or curative title work.

Your attorney will advise you on your contractual rights and obligations. He or she can help you decide if you can proceed with the deal, renegotiate terms, or if you need to terminate the contract.

It might be possible to get a recorded affidavit from the seller or the party benefiting from the easement, acknowledging its existence and terms, which can then be recorded to clear title.

Negotiating with the seller and affected parties

You may need to renegotiate the purchase price or request a credit from the seller to account for the easement's impact or the cost of resolving it. The easement likely reduces the property's value.

If the easement benefits a neighbor, you might need to engage that neighbor. Sometimes, a formal, recorded easement can be drafted and agreed upon by all parties to clarify rights and responsibilities.

Be prepared for delays. Resolving an unrecorded easement can take time, pushing back your closing date. Factor this into your holding costs and timeline.

Assessing the long-term implications for the property

Consider how the easement will affect your ability to use, develop, or eventually sell the property. Does it restrict building plans or impact future buyers' interest?

An easement, even if clarified and recorded, is a permanent encumbrance on the property. Ensure you are comfortable with its existence before moving forward.

If the easement significantly diminishes the property's value or usability, it might be a reason to walk away from the deal, even if you lose some earnest money.

Documenting the resolution for future reference

Once a resolution is reached, ensure all agreements, new recorded documents, and amended contracts are meticulously documented. This is vital for your records and any future transactions involving the property.

Your title policy should reflect the resolved easement. If a new recorded easement is created, confirm it is properly noted and insured.

This diligence protects you against future challenges and provides a clear chain of title when you eventually sell the property.

Questions people ask

Can I get title insurance if there is an unrecorded easement?

The title company will likely require the easement to be clarified and possibly recorded before issuing a full title insurance policy. They want a clear record of all encumbrances.

What if the seller claims he or she did not know about the easement?

Whether the seller knew or not, the issue still needs to be resolved to clear title. His or her knowledge might affect negotiations, but not the necessity of clearing the title.

Will an unrecorded easement stop my transactional lender from funding?

Yes, most transactional lenders will require clear and marketable title before funding. An unresolved unrecorded easement is a significant title defect that would prevent funding until corrected.