Chapter 9 : Encumbrances Other Than Mortgages

• Library: Standards for Examination of Real Estate Titles in Arkansas (2021 Ed.)

CHAPTER 9: ENCUMBRANCES OTHER THAN MORTGAGES

Standard 9.1 Restrictive or Protective Covenants

1. Covenants affecting use of real property or instruments purporting to restrict its use must be recorded and must have been executed by all of the then current record owners of the property to be effective, unless otherwise authorized.¹³¹
2. The existence of restrictive or protective covenants should always be noted and, when practical, copies thereof provided. If the examiner is aware of any provisions pertaining to, limiting, or restricting the intended use or enjoyment of the property, those matters should also be specifically noted; otherwise, the examiner should direct attention to the covenants and advise the parties to consider any impact upon ownership and intended use and enjoyment.

Standard 9.2 Zoning

If the materials examined indicate any applicable zoning information, provisions or variances with respect thereto, their existence should be mentioned, copies provided, when practical, and the parties advised to insure that their intended use will be in conformity therewith. However, there is no duty to search for zoning laws or ordinances.

Standard 9.3 Easements and Rights-of-Way - General

1. When the materials examined indicate the existence of an easement, right-of-way or similar encumbrance, the examiner should identify the instrument creating same, the expressed purpose of the easement, right-of-way or similar encumbrance, its date, recording data, and the names of the grantor and grantee.
2. Easements, rights-of-way and similar encumbrances may be extinguished by abandonment; however, absent a judicial determination, abandonment of an easement, right-of-way or similar encumbrance should not be presumed merely on the basis of non-use. If the grant or reservation includes or outlines particular conditions or provisions for reversion, appropriate comments or requirements should be made with respect thereto.

Standard 9.4 Blanket Easements

1. A blanket easement is an easement that fails to define or specify either the location, width, length or other dimensions of the strip of property actually utilized by the easement holder. In Arkansas case law, blanket easements are more commonly known as "floating right of ways" or "floating easements," but engineers and surveyors usually use the "blanket easement" term.
2. Blanket easements are most often created when the legal description for the entire servient estate is used as the description of the

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