17.2 Title Search, Surveys, Easements, Covenants & Zoning

The PCCE tests title quality and use rights as a flagging skill. Domain 2 asks whether the file shows a complete chain of title, what a title search and survey should have caught, whether a use right is an easement or a covenant, and whether zoning allows the intended use. A paralegal does not give a title opinion — that is attorney work. You assemble the search, label exceptions, and escalate.

Chain of title and the search

Chain of title is the successive recorded instruments that connect the sovereign (or a statutory root of title) to the present owner. A gap — a missing link, unexplained name change, missing spouse, or unprobated estate — is a defect to flag.

Typical search steps:

1. Identify the current owner and the legal description.
2. Search the grantee index backward (or a tract index forward and back) for the statutory period or to the root of title.
3. For each owner, search the grantor index during that owner's period for outgoing deeds, mortgages, easements, and releases.
4. Search judgment, tax, probate, UCC fixture, lis pendens, and name-variation records.
5. Read every instrument against the legal description.
6. Prepare an abstract or pass copies to underwriting.
7. Compare the title commitment to the abstract.

Marketable title is title a reasonable buyer would accept — free from reasonable doubt and serious defects. Insurable title is title a title company will insure, sometimes with exceptions. They are not always the same. Quiet title is the lawsuit that asks a court to declare ownership.

Title insurance: owner versus lender

Title insurance indemnifies against covered title defects that exist as of the policy date and are not excepted.

An owner's policy protects the owner (and typically successors by operation of law) for as long as the insured has an estate. A lender's (loan) policy protects the mortgagee up to the unpaid loan balance; coverage shrinks as the loan is paid and ends when the loan is released.

The commitment (preliminary report) has Schedule A (estate, owner, legal description) and Schedule B (requirements and exceptions). Standard printed exceptions often include parties in possession, unrecorded easements, survey matters, and ad valorem taxes not yet due. Special exceptions come from the search: a recorded easement, an unreleased mortgage, a mechanic's lien.

Endorsements can delete or insure over exceptions (survey, access, zoning as underwritten, condominium). Premiums are typically a one-time closing charge. Title insurance is not a guarantee that the land is worth the price or that zoning will allow a use.

Surveys and encroachments

A survey locates boundaries, improvements, easements, and encroachments on the ground.

A boundary or location survey is the common residential product. An ALTA/NSPS land title survey is the more detailed commercial product used to delete survey exceptions from a title policy. It follows a national minimum-standard table plus optional Table A items (parking, flood zone, zoning classification as surveyor-observable).

An encroachment is an improvement that crosses a lot line, setback, or easement. A garage two feet over the neighbor's line is an encroachment and a title exception. A building that violates a setback is a survey and zoning flag even if it does not cross the lot line.

Never assume the fence is the boundary. Compare the survey to the legal description and to recorded easements.

Easements

An easement is a nonpossessory right to use another's land.

Appurtenant easements benefit a dominant estate and burden a servient estate; they run with the land. In gross easements benefit a person or entity (the classic utility easement) and have no dominant parcel.

Creation methods:

• Express grant or reservation, in writing under the Statute of Frauds, usually in a deed.
• Implied from prior use: common ownership, an apparent and continuous quasi-easement before severance, and reasonable necessity.
• Necessity: a landlocked parcel after severance of common ownership; the traditional rule requires strict necessity (no other legal access).
• Prescription: open, notorious, adverse, continuous use for the statutory period — adverse possession of a use, not of title.

Termination includes merger (same person owns dominant and servient), a written release, abandonment plus intent, the end of necessity, or prescription the other way.

Do not confuse an easement with a license (revocable personal permission) or a profit (the right to take something from the land, such as timber).

Covenants and equitable servitudes

A real covenant is a written promise about land use that runs with the land at law (damages) if the parties so intended, the burden touches and concerns the land, and privity exists. Horizontal and vertical privity rules are state-specific; do not invent a single national privity test.

An equitable servitude is enforced in equity (injunction) when the promise is intended to run and the burdened party has notice. Notice can replace some privity requirements. Recorded CC&Rs in a subdivision are the everyday example. An HOA lien for unpaid assessments is often a priority-by-statute issue — flag it; do not assume it is junior to a first mortgage in every state.

Zoning and land-use

Zoning is an exercise of the police power. A zoning ordinance maps use districts (residential, commercial, industrial, mixed, agricultural) and sets bulk rules (height, lot coverage, setbacks, parking).

A variance is permission to depart from the ordinance because of unnecessary hardship or practical difficulty unique to the parcel (use variance versus area or bulk variance). It is not a rezoning.

A special exception (special use permit / conditional use) is a use the ordinance already contemplates if stated criteria are met — a church or daycare in a residential district, for example. It is not a variance.

A nonconforming use was legal when the zoning changed. It may usually continue but often cannot expand, and some ordinances use amortization. Abandonment can end it.

Spot zoning, downzoning, and comprehensive-plan consistency appear as vocabulary. Building permits and certificates of occupancy are administrative; they are not a substitute for zoning compliance.

How a paralegal flags a title exception

Read Schedule B against the abstract, survey, and contract. Flag unreleased mortgages and assignments, gaps and wild deeds, missing marital waivers, name mismatches, open estates, recorded easements that block the planned driveway, survey encroachments, HOA and tax delinquencies, lis pendens, and unsatisfied judgments. Note whether an exception is standard (and perhaps insurable by endorsement) or special (and maybe a deal-breaker). Prepare a written exception list for the attorney. Do not tell the client title is clear. That statement is a legal conclusion and can be unauthorized practice.

Path. Buyer contracts for a corner lot. The commitment excepts a 10-foot utility easement along the side line. The ALTA survey shows the proposed building footprint inside that easement. Flag the exception, attach the survey, and ask the attorney whether the deal needs a release, a redesign, or an endorsement — do not clear it yourself.

Term-swap. Chain of title is the recorded sequence. Owner's policy protects the owner; loan policy protects the lender. ALTA survey supports deleting survey exceptions. Appurtenant needs two parcels; in gross does not. Variance is hardship relief; special exception is an already-listed conditional use; nonconforming use is a legal pre-existing use.