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Marshall, Roth & Gregory, P.C.

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Lyman J. (Greg) Gregory, III



90 Southside Avenue,

Ste 100

Asheville, NC 28801

90 Southside Avenue Suite 100


90 Southside Avenue Suite 100

A Legal Moment

Title Issues - Part III of a Series


        Today's newsletter concludes my series on title issues with examples of "bad title" and suggestions for how you, as a broker, can best help your clients when title is an issue.

        By far the most common title issue I see impacting closings is a shared access easement. This issue takes two forms: (1) lack of a valid easement to reach the subject property, or (2) the existence of an easement for someone else's use across the subject property.  Problems arise when these uses have no formal written agreement, or when the access actually used is in a different location than specified in a written agreement.  Uncertainty can also arise in urban areas where there are numerous historic alleys that may or  may not be open to the public.  Nothing kills a deal quicker than lack of valid access.

        A second common title issue is a boundary problem.  Such problems can be either gaps or overlaps.  A gap is when two boundary lines described in the deeds for adjoining properties do not meet and leave an area owned by no one.  An overlap is when two boundary lines cover the same area.  In either situation, you can be sure that the adjoining owners have opinions about who really "owns" the impacted area.  Also, someone is almost certainly using that area, and it may not be the person who actually owns it.

        A final common title issue is lack of full ownership.  This happens most frequently in family transfers, especially in deceased persons' estates.  For example, I have seen a title where five children inherited the property, and four of the children got together and "sold" the property to another family member because no one knew where the other child lived.  As you can imagine, the variations on this theme are endless.

        There are several things you can do to help avoid and cure title issues.  First, you should do a very thorough investigation of the property, especially when something looks odd on the ground.  If it looks like a retaining wall comes over the property line, ask about it.  If it looks like two houses share the same driveway, ask about it, and find out if there is a written recorded agreement regarding the shared drive.  If you see pipes running from a spring or well on the property to another house, investigate.  Be sure to share your observations with the attorney doing the title search because attorneys do not visit properties as part of the closing process.   Finally, be prepared to advise your clients to obtain a survey when necessary to sort out any of these issues, especially boundary problems.

        Second, if a title problem impacts a closing, pay attention to the contract deadlines.  Get amendments resetting the closing or due diligence dates while title problems are being resolved.  This will avoid a party under contract having an excuse to end the contract because of the length of time it is taking to fix a title problem.  By extending due diligence and closing dates, you will keep all parties in the game, and find out if one is becoming unwilling to wait for a title cure.

        Finally, you should stay in close communication with your client and the other broker.  Title cures may involve getting information, and sometimes signatures, from neighbors or other family members.  Keeping the lines of communication open and doing the legwork to get information and signatures can greatly help with fixing title issues.

        This concludes my series on title issues.  I hope you have easy closings without title problems, but if you do, I hope you feel better prepared to understand and help resolve them.



Do not hesitate to contact me to receive more information on this topic or to suggest topics for future editions of 'A Legal Moment'. You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.

Marshall, Roth & Gregory, P.C. • 90 Southside Avenue Suite 100 • Asheville, NC 28801
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