Identifying the property that is the subject matter of a deed, mortgage, contract or any other agreement, is a critical component for enforceability. Back in the 17^th and 18^th century, the Boards of Proprietors, a few individuals who owned the majority of land in New Jersey, commissioned surveyors to survey and prepare maps or descriptions of their lands, which the boards wished to convey. Similar to today, larger tracts of land were divided into smaller tracts. The descriptions were, and still are based on land measurements taken by surveyors, who go on-site to the property to identify its boundaries.

There is a history of conflicting division lines between the Eastern Board of Proprietors and the West Jersey Board of Proprietors.  Over the centuries that have passed, there have been several instances where boundary line location disputes, overlaps and gores existed due partially to the less advanced systems of measures and recording that were relied on.  The records of both Boards are now with the New Jersey Department of Environmental Protection (NJDEP).

A [legal] description identifies the land being conveyed in a particular instrument, used to indicate the delineation of boundaries, which separate a given parcel from the surrounding land. The description used in a deed, mortgage, or lease needs only to identify the property with reasonable certainty to constitute a valid conveyance. One court decision states, “It is not necessary that the description of property conveyed by a deed shall define it by the metes and bounds or by reference to a specific location, in order to pass title”.  Thus, a description by reference to a tax assessment map or by street address alone is usually adequate to pass title; however, such little information is not generally acceptable from a title insurance standpoint.

For purposes of insurability, the description used in a deed, mortgage, or lease should be as precise as possible. The best modes of describing land, from the title insurer’s standpoint, are metes and bounds and filed map descriptions.  Tax lot and block references are generally only accepted as a legal description when the property is conveyed by a municipality.

Metes and bounds descriptions are written versions of what is graphically set forth in a survey. It should contain a beginning point, which locates the starting place of the description, oftentimes with a readily identifiable point and end with “thence”, indicating there is more to come. For example, “BEGINNING at the point formed by the intersection of the westerly sideline of Main Street with the northerly sideline of Elm Street, thence,”. Next, the description should contain bearings and distances, which are the compass bearings indicating the location of the boundary lines with respect to “true” north and the length of the boundary lines in feet and inches. For example, continuing from the above beginning point the bearings and distances are listed for each boundary line as such, “ North 34 degrees 58 minutes 43 seconds east, 92 feet to a point, thence,”. There will generally be multiple lines of bearings and descriptions, sometimes ending with monuments or boundaries, such as a utility pole, intersections of roads, the boundary of a named person’s property, a stream, or sometimes even just a particular type of tree.  Finally, the description should end with closure, or the last boundary line in the description, returning to the beginning point, “South 55 degrees 10 minutes and 04 seconds East, 906.34 feet to the point or place of BEGINNING”.

An easement is a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. It may be more broadly described as a right for a property owner to use the land of another property. An easement which runs to benefit of the grantees and to their heirs will be construed as being perpetual in duration; however, an easement can be granted for a certain period of time, such as 10 years. There are two main categories of easements: appurtenant and in gross.

An easement appurtenant benefits a particular parcel of land, known as the dominant estate and burdens another parcel of land, known as the servient estate.  A conveyance of the dominant estate also passes the benefit of the easement, while a conveyance of the servient estate passes with it the burden thereof. Easements appurtenant are generally considered perpetual because they “run” with the land. 

The easement may be exclusive, benefiting only one party, or non-exclusive so it benefits several parties who have the right to use it in common. It is important to remember that the dominant estate owner may not use an appurtenant easement to benefit property other than the dominant estate. For example, if A, B, and C are owners of contiguous lots, and only A’s lot abuts a street, (and B’s and Cs’ lots are landlocked) an easement granted by A to B to pass over A’s lot for access to the street may not be extended to allow C to cross A’s lot without A’s consent. 

An easement in gross does not benefit any parcel in particular. This type of easement may indirectly benefit another parcel by enhancing its value and there is no dominant or servient estate. Easements in gross were originally held to be non-transferable but the modern view is that an easement in gross is transferable by the holder thereof. An example of an easement in gross is a right-of- way for high-tension power lines that cross over a property. The utility company would be the grantee of the easement and in most utility easement cases, the easement does not benefit a particular adjacent parcel owned by the utility company, therefore there is no benefitting party or dominant estate.

Creating an Easement

There are generally three ways to create an easement: grant or reservation, implication (including necessity), or prescription. The instrument creating the easement must be executed by the owner of the land which is to be burdened by the easement. If more than one person owns the land, all owners must sign, or the easement is invalid.

Easement by Grant or Reservation

An easement is created by grant or reservation through the use of a written instrument. The grantor may “grant” the easement to the grantee or the grantor may reserve an easement to the grantor in a deed of conveyance; however, a reservation may not be created in favor of a third party by attempting to “reserve” it in a deed of conveyance. Additionally, an easement may also be created by depiction on a filed map, notwithstanding the lack of a separate, written instrument establishing it.

Easement by Implication (Including Necessity)

An easement by implication arises by operation of law. It is created by judicial interpretation of the circumstances surrounding a conveyance of land. An easement by necessity is a form of easement by implication and is created when there has been unity of ownership and a subsequent separation of the parcel results in the grantor or grantee owning a landlocked parcel. The key to establishing an easement by necessity is the original common ownership. For an easement by necessity there is no requirement that one portion of the land has been used for the benefit of the other prior to severance. The four required elements to establish necessity are:

Easement by Prescription

 For example, if Owner A walks across Owner B’s land every day for a period of 20 years, despite Owner B’s demand that A stop, Owner A may have acquired a prescriptive easement over Owner B’s land. However, it is important to keep in mind that a license or permissive use cannot ripen into a prescriptive right. Therefore, if A had been granted permission by B to walk across B’s land, or if B tolerated A’s use of B’s land without protest, no easement is created. However, if the use continues for a sufficient period of time after permission is revoked, there could be a prescriptive easement.

Termination of Easements

An easement may be terminated or extinguished through written instrument, merger, terms of the instrument creating the easement, overburdening, abandonment, or estoppel. 

By Written Instrument/Merger:

A written instrument, such as a release or deed, given by the owner of the dominant estate to the owner of the servient estate will serve to extinguish an easement. In addition, an easement could terminate automatically by its own terms if it has a specific timeframe in it. A merger of the dominant and servient estates will also destroy an easement. Additionally, the holder of an interest senior to the easement may, under certain circumstances, be able to destroy it. 

By Abandonment:

An easement may also be terminated through abandonment; however, the mere non-use of the land is not unusually enough to establish an abandonment. The non-use must also be accompanied by other actions on the part of the holder of the easement, which the servient owner relied upon to his detriment. To verify the termination, one would obtain a Court Order or written agreement with the other party. 

By Overburdening:

Overburdening or misuse of an easement can also result in its destruction when a dominant estate subjects an easement to a use far beyond the original contemplation of the parties; however, it is only applicable in extreme cases. As a general rule, where the dominant estate is subdivided, an easement appurtenant insures to the benefit of each subdivided parcel. So, one should not generally assume that an easement has been destroyed by overburdening merely on account of the subdivision of the dominant estate.

By Estoppel:

If the owner of a dominant estate, by his or her words, action, or conduct, indicates that the easement is no longer needed or useful, and the owner of the servient estate relies thereon to his or her detriment, the dominant estate owner is prevented from later asserting the validity of the easement. For example, a dominant estate enjoys the benefit of a right-of-way easement over the servient estate. The owner of the dominant estate, John, is aware that the owner of the servient estate, Jan, intends to construct a building over the area affected by the easement; however, John does not object to Jan’s plans. After the construction of Jan’s building has been completed, John demands that Jan demolish the building because it obstructs the easement. Jan refuses on the grounds that John did not object before the building was constructed. Therefore, John could be estopped from enforcing the easement. A Court Order may be necessary to effectuate this formally. 

Unenforceable Easements

Certain easements are unenforceable because of the manner of their creation, or for other reasons. Some examples of easements that may be considered unenforceable are:

• easements not executed by all owners of the property at the time of creation
• easements not properly recorded or indexed in the chain of title; and
• unrecorded easements. 

When buying property, it's important to be aware of any liens that may be attached to it. A lien is a legal claim on a property, usually as a result of an unpaid debt or obligation. Liens can affect a home buyer's interest in a property and can cause financial and legal issues if not properly addressed prior to purchasing the property.

Liens can be placed on a property for a variety of reasons, such as unpaid child support, Medicaid bills, Public Defender bills, or even the judgment resulting from court proceedings. When a lien is placed on a property it becomes encumbered, meaning there is a right to, or interest in, land held by a person other than the fee owner, or a claim, lien, charge or liability attached to and binding real property. At the state level, liens are filed with the Superior Court of New Jersey.

A judgment of the Superior Court becomes a lien upon all of the lands of the debtor (or defendant) in the State of New Jersey, from the time of its entry upon the Superior Court Clerk’s Civil Judgment and Order Docket. This includes final judgments for a fixed amount of money, whether entered into the Law or Chancery Divisions. The lien is purely statutory in nature. An abstract of the judgment must be submitted to the Superior Court Clerk together with the requisite filing fee in order to create the lien (entry upon the minute book of the court clerk of the local county is insufficient). If the judgment abstract is filed in the local county but not submitted to the Superior Court Clerk (with the requisite filing fee) then the lien was never created.

 Judgments entered into the US District Court for the District of New Jersey are treated like judgments entered in the Superior Court of New Jersey. The same applies to judgments entered into the US District Courts of other states as the judgment may be docketed with in the US District Court for the District of New Jersey due to the Uniform Enforcement of Foreign Judgments Act. **In order to discharge the judgment, a Warrant of Satisfaction must be filed with the state. **

Institutional Liens are statutory liens created to enforce the financial obligations of persons suffering from mental or other illnesses who receive treatment at state or county medical facilities. Due to N.J.S.A. 30:4-27.2, state or county owned psychiatric hospitals are no longer allowed to file new liens (and their previously filed liens from before the date of the statute have been extinguished); however, hospitals that are not government-owned, but which receive State subsidies to provide psychiatric or non-psychiatric treatment  can file certificates of debt with the CJ&OD or may choose to reinforce the claim by filing an action in Superior Court in order to reduce the claim to judgment.

Medicaid Liens arise from a program, jointly administered by federal and state governments which provides medical assistance to the needy. As services provided to eligible recipients have proved to be quite expensive imposing  a heavy burden on both federal and state budgets, government agencies have become increasingly aggressive in their efforts to recover funds expended on behalf of Medicaid recipients. To do so they frequently rely on the asset transfer penalty allowing for recovery against real or personal property. A statute provides for the imposition of a lien on the “estate of a deceased recipient” however, if a “deceased recipient” is survived by a spouse or child (under age 21 or disabled), “no encumbrance or recovery shall be imposed or sought” against the until the surviving spouse dies or the child reaches age 21. Furthermore, the Medicaid lien only becomes effective as of the date it is filed with the court.

Public Defender Liens are from the reasonable value of the services rendered to a defendant by a Public Defender. When unpaid, the Public Defender may file a lien on any and all property to which the defendant shall have or acquire an interest. To effectuate such a lien, the Public Defender must file a notice setting forth the services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The date of filing is the date the lien becomes effective and therefore becomes a lien on said property for 10 years, unless discharged sooner. ***UPDATE***

Real Property generally should not be sold or transferred without satisfying open liens. This means that the seller must pay off  any open liens and file the appropriate documents before transferring ownership to the buyer. A good title company will do extensive research on the property being sold to ensure that there are not open liens that may affect the buyer’s ownership of the property.

For residential home buyers purchasing an Owner’s Title Policy, there is an option to purchase a policy with standard coverage or a policy with enhanced coverage. The Enhanced Owner’s policy, also known by Stewart and Fidelity as the Homeowner’s Policy and by First American as the Eagle Owner’s Policy, offers additional coverage for buyers of residential property. Keep in mind that the Enhanced policy can only be issued to a natural person or the trustee of a Trust on residential 1-4 family completed structures. Unfortunately, it cannot be issued to any type of corporation or organization and cannot be issued on vacant land or any other land classification other than residential.

 The Enhanced Owner’s policy includes all of the protections provided under the standard ALTA policy plus additional protections and benefits. The additional covered risks for the Insured include mechanics liens that belong to someone else, unrecorded liens by a homeowner’s association, false impersonation of the true owner of the property, forged deeds, releases or wills, undisclosed or missing heirs, instruments executed under invalid or expired Power of Attorney, mistakes in recording legal documents, deeds by minors, deeds by persons supposedly single but in fact married, liens for unpaid estate, inheritance, income or gift taxes, and fraud, and several other additional benefits explained below:

The Enhanced Policy's Additional Benefits

The Enhanced policy protects homeowners against claims arising both before and after the policy date. The Homeowner is covered if someone else has an interest in or claims to have rights affecting the title or if the title is defective. Post-Policy protection includes coverage for forgery, easements by prescription, encroachments built by neighbors after the policy date and adverse possession.

Expanded Access Coverage

The Standard Owner’s Policy does not define the type of access a homeowner has to the property but the Enhanced policy specifically insures both actual pedestrian and vehicular access, based upon a legal right. 

When purchasing property, the manner in which title is vested is an important decision which sets a plan for what happens to each owner's interest in the property when they pass. 

When more than one buyer is involved in purchasing property, how they take title is an important discussion to have. When two or more buyers take title together, it is a co-tenancy; however, there are different main options for co-tenancies and whichever option is chosen determines the future of each owner's share of the property. 

The most common ways to take title are: 

As title agents review searches and prepare commitments for their transactions, there are oftentimes title issues that arise. Issues may include old mortgages that were never discharged or satisfied of record, tax sale certificates that were paid but never cleared from record, errors in land descriptions, etc.; however, it is possible that the current owner's policy in place may not have added the title issues as exceptions to the policy. In such cases, the title agent insuring a transaction can rely on the prior insurer's policy to issue without exception on the new policy. 

Prior to 2006, title companies had to request a letter of indemnity from the prior underwriter insuring the policy for each and every title issue. In 2006, all title insurance underwriters doing business in New Jersey entered into an Inter-Underwriting Indemnification Agreement. The agreement's purpose was to streamline the indemnity process between underwriters for specific issues and eliminated the need for a formal letter. In 2009, the treaty was revised, increasing the liability limit to the lesser of the face amount of the Prior Insurer's Policy or $1 mil- lion and expanding the coverage of issues that were included in the treaty. 

When seeking indemnification for one of the seven title issues covered by the treaty, the title insurance company that has issued the current policy in effect (known as the "Prior Insurer") must provide the title company that is insuring the transaction (known as the "Current Insurer") with a copy of the Owner's Policy that is still in effect, including schedules A and B of the policy. 

The seven issues included in the Indemnification Agreement are: 

• Judgments;
• Federal Tax Liens and other statutory or common law liens provided nevertheless that in the case of any lien which will not expire in a fixed period of time;
• Liens of Federal Estate Taxes, NJ estate taxes and transfer inheritance tax;
• Tax Sale Certificates, provided there are no pending or successfully concluding proceedings to foreclose, and further provided that contemporaneous notice is given to the Prior Insurer of the Current Insurer's intention to rely on the prior Insurer's policy in accordance with the terms of the agreement;
• Marital Rights arising in favor of the spouses of record titleholders;
• Legal Description errors such as lack of metes and bounds or filed map descriptions or scriveners' error contained in descriptions, provided that the land conveyed may still be identified from the documents themselves using recitals, tax information, etc.; and,
• Alleged or Actual Defects in judicial proceedings, provided they are not major defects

Title issues NOT included in the indemnity include any lien of record against the current owner, defects in a master deed, missing interests, defective bankruptcy or foreclosure proceedings, association dues,  violations of restrictions, pending judicial proceedings, insufficiencies of Power of Attorney, open property taxes and assessments, escrow compliance issues, etc. 

While the agreement only includes the seven title issues, a title insurance company can still request a letter of indemnity form the prior insurer for other types of issues. 

Before Title Insurance

Prior to title insurance, purchasing real estate was a much riskier venture. When land was purchased, buyers assumed it was free of any title rights, interests, liens or encumbrances that would interfere with their claim once the transaction was complete.

Historians believe the first legislation regarding ownership of real property was enacted in the English colony of Virginia in 1626. It required all land sales to be recorded within one year of the date of transfer in the General Court at Jamestown. As the recording system developed, property rights such as easements, liens, rights of way and other pertinent interests found their way into the recording of property sales. 

People known as "conveyancers" managed early land transactions and were recognized as the local authorities on real estate law, despite the fact they weren't lawyers. They were responsible for conducting searches of the land records for any interests that could create liability for the new owner. They would produce a signed description of the status of the title, certifying that the title was free and clear. Such certification protected the buyer, but the protection was limited. 

The risk of losing property due to unresolved issues was significant. If unresolved issues caused problems, the borrower or lender would have to prove legal negligence in order to collect damages from the conveyancer for his or her errors, which was difficult to prove. 

Watson v. Muirhead

The court ruled that the lien, and thus the sheriff's sale was lawful, and Muirhead was not held liable for misinformation because legal standard was negligence or failure to act with due care. Since Muirhead had relied on an attorney's opinion that the lien was invalid, he had used "due care", even though the  attorney was incorrect. 

The First Title Insurance Company

As a result of the court judgment and subsequent loss to the purchaser, in 1870, Joshua H. Morris and a group of conveyancers formed a group called the Philadelphia Conveyancer's Association. The Legal Gazette published an article that stated the organization's purpose was to set a standard of proficiency and professionalism amongst conveyancer's in Philadelphia. 

Real estate transactions are target or a cover for many different financial crimes. As a title and settlement agency, we are in a continuous battle against financial crime and our technique for fighting these financial crimes is to prevent the crimes from taking place. Thus, Zwiren Title has established the following procedures:

• Daily Closing Department Meetings: Our closing team meets daily to discuss upcoming closings and potential issues that may occur. 
• Verbal Confirmation of Wire instructions: Before sending a wire, we call to confirm the wire instructions we've received are correct, to ensure funds are wired to the correct account.
• Two-Party Wire Approval: In order to send a wire, two authorized employees must be involved: an initiator, who enters the wire amount and an approver who confirms the amount and instructions are correct.
• Positive Pay: Everyday, we receive images of our disbursed checks that have been cashed or deposited. We review the check amount and endorsement to confirm the intended payee(s) deposited the checks. If there is any issue, we can stop they payment of the check.
• Daily Escrow Account Reconciliation: Our escrow account is reconciled every day to ensure all funds coming in and going out are accounted for. (Account Reconciler is prohibited from disbursing any funds from the escrow account).
• Company Insurance: We have a comprehensive Cyber Insurance and Fidelity Policy. 

National Financial Crime Fighter Day is celebrated on October 26 every year. The objective of the day is to celebrate anti-money laundering professionals and the positive effect their work has on financial institutions in the US. The first ever Financial Crime Fighter Day was held in 2017 and was organized by a risk management technological platform used by financial institutions in America. It was created to honor anti money laundering professionals and acknowledge the extremely important work they do.