Legal Question in Real Estate Law in California

Re: Recorded vs unrecorded easement

Your question raises many questions and potential issues in the mind of an attorney reading the limited facts given. These include:

Could permission to do 'a' imply permission to do 'b' and 'c' as well?

Perhaps the easement, or the second unrecorded easement if it existed, has ceased to exist by virtue of adverse possession or non-use, or even abandonment. Easements can be extinguished in a number of ways.

Perhaps the second 'easement' was not a true easement, but only a license. The main differences are that a license is personal to the grantee and does not run with the land, and is usually revocable by the grantor at will.

The parol evidence rule would probably not apply. That is, the court would probably not use the instrument you signed to expand the scope of the written and recorded easement.

If you acquired the property without notice of the second easement (if it exists), either by its recordation or by observing it (it's pretty hard to say you had no notice of the railroad's easement when the trains are running through your backyard!) or otherwise, then you would have a strong defense to any attempt to enforce the unrecorded easement. The document you signed would, however, be evidence that you DID have notice, if the document accurately described the unrecorded easement and it was executed before you bought the property and recorded your deed.

A first step in unwinding the mystery would be a careful check at the recorder's office to find the second recorded easement, if it exists.

Re: Recorded vs unrecorded easement

A recorded document has to have notarized signatures. Do you have a copy of the document in question? A document does not become invalid just because it was not recorded. I would need to see the document in question. Perhaps it was granted by a prior owner and was just recently.

Let me know.

Re: Recorded vs unrecorded easement

A recorded instrument cannot be changed, although it can be held by the law to be invalid.

In any case, in order to record a document, it would need to be notorized to verify signatures. You probably signed a disclosure document, just giving you notice of a posible easment. Since you are aware of it, you would be required to disclose it as well.

Let me know if I can help, as I have RE Brokers license as well as legal, I have a good understanding of these types of documents.