QUESTION
can the closing attny, be sued for not catching a recorded easement?
Asked on Aug 13th, 2012 on Residential Real Estate - South Carolina
More details to this question:
We bought the home frb 2011 and after a few weeks a lagy showed up with an easement that we were told by the attorney never existed,we were told there was a power easement but no legal drive easement.we have just had to well after mediation decided to just deed her the 20ft right away off,but I''am almost sure that we should be compensated for the over eight thousand attny fees and for the loss of property and the cost difference it has made to my land value.
1 ANSWER
You should seek the advise of an attorney in your county or an adjoining county. Easements and there existence are and can be very difficult to ascertain. The existence of an easement is often contested. Thus, reasonable minds can and do differ on the existence as well as the scope of easements. The existence of an easement is generally a question of law for the Court (essentially contractual); while the scope of an easement is a question for the Court in equity (the issue is what's fair?).
Some access easements are expressly granted; others are implied. Some established by prescription and others by prior use. This is extremely complex law. Hence not all are obvious.
The SC Supreme Court has recently described in several cases the purposes of lawyer oversight of real estate transactions in the State of SC. The cases describing these purposes should be reviewed in the context of the services you requested from the closing attorney.
One suspects the mediator took all of your questions into account when you negotiated the settlement of the easement with the adverse party. For this reason, having settled the issue, you may be estopped from bringing a claim against the closing attorney.
This answer does not and should not be construed as establishing an attorney client relationship.
Answered on Aug 14th, 2012 at 12:58 PM