Who has authority to grant a modification of an existing easement when the property is in foreclosure?

UPDATED: Aug 4, 2011

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Who has authority to grant a modification of an existing easement when the property is in foreclosure?

I have the south 20 acres of a 40 acre plot. North 20 has county road access, and my easement is via a dirt road running west to east across the north twenty, “to north property line” of south twenty, although the road does not go there. There is a bluff bisecting the east side, so only reasonable access south is on west side. The north 20 granting the easement is in foreclosure, but the former/current owner would gladly clarify/modify the easement. How do I proceed to obtain a clearly interpretable easement so I can access buildable area along west side of south twenty?

Asked on August 4, 2011 Arkansas


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Under the laws of all states, the owner of record of real property has the right to grant an easement over his or her property even if the property to be burdened by the easement is in foreclosure.

In your question, it appears that there is an error in the easement's description that benefits your property and burdens the property that is in foreclosure. If the current owner is willing to sign an "easement clarification agreement" to clarify and modify the easement that benefits your property, have one drafted up by a competent real estate attorney, have it signed by the neighbor willing to do this, and record it on his property for the benefit of yours as soon as possible while the neighbor is still record owner of his property.

Good question.

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