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Do I need to draft an easement agreement?

Los Angeles, CA |

We are in the middle of escrow and discovered an existing easement. The neighbor of the house we are buying owned the house we are buying at one point, so she owned adjacent houses. She later sold to the current seller. Prior to that sale, she created an easement for herself to use 15 feet of the land east of the house we are buying. We are okay with her using that 15 feet of land. We are, however, concerned because the easement agreement gives her exclusive use of the easement, and within this easement is a set of stairs attached to our house that leads to our back yard entrance. We would like to revise the agreement to legally allow us to use the stairs. Is it our duty as buyer to get a lawyer and revise easement? Or is it seller? Seller should deliver marketable title, correct?

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Attorney answers 1


Marketable title is actually a different concept which is not the same as its plain meaning in English. As to your questions, yes you should have a lawyer prepare a modification of the easement. As to who pays, perhaps if you split the costs by agreement with your seller that might be equitable.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.



I thought marketable title means "free from reasonable doubt" and that unmarketable title means if the seller does not own the property he purports to sell or if the property is subject to a lien, easement or other encumbrance. Is this correct? I thought that in a typical real estate purchase contract, there is an implied convenant that seller must deliver marketable title. Thanks in advance for your response.

Hillary Johns

Hillary Johns


Simply put, marketable title means you can sell the property because you own it and can convey good title. It sounds like the seller has done that. An easement is an agreement regarding use of the land which comes with the property. It doesn't necessarily affect marketable title. They're two different things. Mr. Doland is right. Hire a lawyer and get it done right.

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