Buying Property With an Easement in South Carolina: What Should You Know Before Closing?

Finding an easement during a real estate transaction does not necessarily mean something is wrong with the property. Easements are common, but they can affect how an owner uses part of the land, who may cross it and what changes may be possible in the future.


For a buyer, the important question is not simply whether an easement exists. It is what the easement allows, where it is located and whether its terms fit the buyer’s plans for the property.


Reviewing those details before closing can help buyers understand what they are purchasing and identify questions that may need to be addressed before ownership changes hands.

What Is an Easement?


The South Carolina Court of Appeals has described an easement as a right to use another person’s land for a specific purpose. The court has also recognized that rights of way may arise by necessity, grant or prescription.


An easement does not usually transfer ownership of the land itself. Instead, it gives another person or property a right to use a defined portion of the land for a particular purpose. Examples may include access to a driveway, utility lines, drainage, shared roads or access to land that otherwise would be difficult to reach.


The scope of an easement depends on how it was created and the language of the document or other legal basis supporting it. Buyers should avoid assuming that every easement works the same way.

Where an Easement May Appear in the Closing Process

Under South Carolina law, recording can affect whether an instrument involving real estate is valid against a later purchaser for value who did not have notice of it.


An easement may appear in a deed, a separately recorded agreement, a plat or other property records reviewed during the closing process. A survey may also show the location of a recorded easement or reveal an existing use, such as a shared driveway or utility path, that deserves additional review.


South Carolina’s recording law generally provides that instruments affecting an interest in real estate must be recorded to affect the rights of later purchasers for value who do not have notice. That makes the public record an important part of reviewing title before closing.


Recorded documents are not the only source of questions. A visible road, path, driveway or other longstanding use may raise issues that should be reviewed even if a buyer does not immediately see a matching easement on the documents provided at the start of the transaction.

How an Easement Can Affect Property Use

An easement can influence how a portion of the property may be used. For example, a buyer may have plans for a fence, addition, detached garage, landscaping or other improvement in an area where another party has access rights.


The practical effect depends on the easement’s location and terms. Some easements are narrow and have little effect on everyday use. Others may cross a significant part of the property or limit what can be placed in a particular area.


Before closing, buyers should compare the easement with their plans for the property rather than waiting until after a project is underway.

Shared Driveways and Access Rights

Shared driveways are one situation where easement questions can become especially important. Two properties may rely on the same driveway, private road or access point, but the legal rights and responsibilities connected to that use may not be obvious from looking at the property.


A written agreement may address who may use the driveway, which portion is covered and whether there are responsibilities for maintenance or repairs. If the actual use of the driveway does not appear to match the recorded documents, that difference may need further review.


Buyers should also understand whether the property depends on an easement across neighboring land for access. If access is important to the property’s use, the language establishing that right deserves careful attention before closing.

What Buyers Should Review Before Closing

When an easement appears during a transaction, buyers may want to review several details before signing final closing documents:

  • The document that creates or describes the easement
  • The legal description, plat or survey showing where it is located
  • Who has the right to use the easement and for what purpose
  • Whether the easement benefits or burdens the property being purchased
  • Whether the current use of the property matches the recorded documents
  • Whether planned improvements could interfere with the easement area


The goal is to understand the restriction or access right before the transaction is complete, when questions may still be easier to address.

What If the Easement Does Not Match How the Property Is Being Used?


South Carolina courts have noted that recorded easements can affect later purchasers, but actual notice can also matter. That is one reason a visible use of the property should be compared with the title records rather than evaluated in isolation.


A difference between the recorded documents and the way property is actually being used should not automatically be ignored. For example, a driveway may extend beyond the area shown in an easement, or a neighboring property owner may be using a route that is not clearly described in the documents a buyer has reviewed.

 

These issues are fact-specific. A buyer who sees a conflict between a survey, deed, recorded agreement and actual use may want legal review before assuming that the visible use can simply continue or be stopped after closing.

How DGR Helps With Easement and Property Questions

Easement questions can overlap with title review, surveys, closing documents and future property plans. Addressing those questions before closing can give buyers a clearer understanding of the rights and restrictions connected to the property.


DGR works with buyers and sellers through South Carolina real estate closings and also handles real estate litigation, including disputes involving easements and property boundaries.


If you have questions about an easement, survey, title issue or upcoming closing, contact Dial, Grimm & Rupert to discuss the property and your options before closing.

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