Unintended Effects of a 'Belts and Suspenders' Approach

Recently, for example, in connection with the sale of a site formerly leased by a well-known big box retailer, the title search revealed a memorandum of lease between a previous owner as landlord and the retailer as tenant, and a separate, standalone agreement between such parties. This standalone agreement (the Agreement) recited the existence of the lease and referenced specific sections of the lease that established certain cross access and parking easements between the tenant's leased premises and the landlord's adjacent property. It also imposed certain building restrictions on the tenant's leased premises. The legal descriptions attached to the Agreement described the tenant's 10' acre premises and approximately 42 acres of the landlord's adjacent property. While the title company agreed to remove the reference to the memorandum of lease from the buyer's owner's title insurance policy with a seller's affidavit that certified the lease had been previously terminated, the title company was unwilling to delete the Agreement as an exception to the owner's policy. According to the title company, the argument that the Agreement created permanent reciprocal easements that continued to benefit and burden the entire 52 acres described in the Agreement created a potential risk which the title company was unwilling to insure.