One Last Easement Snag

[noncompos]

IN CA AND OR, DURING THE YEARS I WAS WORKING IN THOSE STATES,an access easement granted to a parcel of land was "appurtenant" to that parcel, and once of record, did NOT have to be set out in all the later deeds for that parcel as long as the deed states, or State usage accepts, that the parcel is conveyed "... with the tenements, heridataments and appurtenences thereof..." or some such "blanket" language. So:
A buys 5ac with a road/util esmt to the public road, described in his recorded deed.
A sells to B, B sells to C, C sells to D; none of the LATER deeds mentions the esmt, BUT since the esmt is an appurtenance, it goes automatically under the "blanket" language, and D has the right to use the esmt.
So, if you're researching an esmt, and you find a deed that omits it, it doesn't necessarily mean you've found a break or abandonment of the esmt.
This is especially true in older deeds; in later years, to avoid these questions, it became good form to include the esmt in each new deed.
With sympathy, Bud

 

[John T]

EXCELLENT,,,,,, I used to love to chat with your type folks at land Title Companies (ALTA people) because as I tell a lot of my clients when detailed legal description or survey or easement questions arise ASK A SURVEYOR OR TITLE COMPANY they work with that stuff more often then most (notwithstanding real estate attorneys) lawyers ever do.

The way I look at and describe what youre talking about is that a landowner can convey alllllllllllll whatever right title and interest he has in real estate orrrrrrrrrrrrr less butttttttttt never more. He can reserve an interest such as a life estate or an ingress and egress easememt etc etc and end up, therefore, conveying LESS then his current title, but he can NOT end up conveying any more rights then he has.


Heres the deal regarding conveyance by a general warranty deed: UNLESS the deed recites otherwise and REGARDLESS (like your example) if it states the land is subject to some ancient (but not abandoned) easement OR NOT, as you correctly point out, ITS STILL SUBJECT TO THE SAME even where it dont say nuttin about it on the face of the deed. AND WHO BEST TO RESEARCH AND DISCOVER AND INFORM THE PROSPECTIVE NEW OWNER OF THAT EASEMENTS EXISTENCE (Its NOT on the deed remember) buttttt A GOOD TITLE AGENT. IF THE ATTORNEY HASNT DONE HIS JOB OR HIRED A GOOD ABSTRACTER TO SEARCH THE CHAIN OF TITLE FOR HIM the buyer can end up with a Servient easement even if he had no idea grrrrrrrrrrrrrrrrr

Its possible to do away with such easements by abandonment or conveyance but absent such they are still valid rememeber......

As far as an easement appuretant as you explain it pertains exclusively to and is servient to the dominant tenant who uses your land to get to his. Butttttttt as you further explain its NOT necessarily appurtenant to or applicable to any other Joe blow who happens to own some land behind yours, ITS APPURTENANT TO the dominant parcel it was originally intended to serve...

Even though I state on the deeds I prepare the standard clause "Subject to duly recorded easements covenants and restrictions" as a matter of law that is true REGARDLESS which is what youre trying to warn against also it appears.

Finally, (from my earlier discussion) say the dominant tenant has an easement across you to get to his property and then sells off an acre for his son to build on, the son likely has the easement also buttttttttttttt thats NOT to say if he builds a subdivision back there 500 more people automatically now have an easement THATS A DIFFERENT BALL GAME.

That serves to point out why I preach n preach on a questioner should NOT take anythign I or a lay person here has to say about something because these complex issues vary case by case and state by state and require fact finding and research prior to rendering a competent professional legal opinion. For example, to be on the safe side, I had to advise one questioner to assume those behind him will also have an easement to cross over on him which may not be true subject to the scenario described above.... Likewise, I advised someone who didnt trust family members to name a bank as a trustee although a "trusted" family member is usually who I would recommend.

And we havent even touched on covenants that "run with the land" versus those that dont have we lol

Hire a local attorney and have an abstracter/title company agent run a title search and consult a land surveyor if you have questions.

Merry Christmas n best wishes to all

John T Country Lawyer

 

[JDemaris]

Yes, but it can still be a problem. "A" has a certain right forever that goes with his land, heirs, assigns, etc. He then subdivides and sells off several smaller parcels. Down the road, if not spefically mentioned in each deed, it can be questioned if that original easement goes with all the newer subdivions - or not. I've seen it go both ways. It's up to the presiding judge - right or wrong, unless it gets appealed.

I just went through something similar yesterday. 160 acre parcel in Michigan. I bought a 33 acre chunk off of it. There is a recorded easement, put in place by court order, that goes with the orignal 160 acre parcel. The 33 acres that I bought is the parcel that really needs the easement. Part of the purchase agreement was - that the seller have the new warranty deed, to me, include specific language indicating my easement. They did not - and the deal almost fell through.
The new proposed deed they faxed me - read -
" Being subject to roadway and other easements of record, if any. "
I refused it, and told them the generic "if any" was not good enough. The title company president than called me, and told me it was not legal in Michigan to specify an easement in a warranty deed. That is pure BS and I politely told her so. I was just ready to back out on the deal, when they changed it to the following:

"Subject to conditions set forth in judgement recorded at liber 282 page 511, citing reservations of ingress
and egress by predecessors in title, unto heirs, successors and or assigns and also cited at Liber 283 of Deeds page 203, Presque Isle County Records. "

After that change, we bought it, i.e. we closed on the property. Otherwise, we would of refused it. Without that inclusion, I may have had to go to court to attempt to prove my rights.

Here's the wording from the original court order:

Reserving unto Grantors, their heirs and assigns and easement of ingress and egress over the
existing two track road located within the above property.
This deed is given pursuant to a judgement of the Presque Isle County Circuit Court dated July
25, 1988 and entered in Case No. 87-001329-CH.

 

[Anonymous-0]

Don't put too much trust in the title insurance companies. I had a piece of property in Texas a number of years ago that had a title problem and the title insurance company tried to keep it 'under the rug' until the statute of limitations got them off the hook. Luckily we found a 'smoking gun' memo in their files during the discovery process.

After three years and nine (count 'em - 9) lawsuits, including one against the attorney that was supposed to be solving the problem, I got a clear title. I did collect damages (which I shared with my attorney). The title insurance company paid most of the money for damages but continued to insist that they did nothing wrong.

If my attorney had not been a bulldog, I might have lost the property and been left with nothing but a mortgage to pay. But, can you imagine 10 lawyers in a meeting room trying to agree on something, especially wlith 9 of the 10 working for the other side They couldn't agree on what time it was, let alone anything else.

 

[John T]

For sure jd n just as we both I believe preached in previous discussions THE EXACT LANGUAGE CONCERNING THE EASEMENT IS CRITICAL........ Gotta love it when you win on something like that

John T

 

[John T]

Around here the title insurance policy will EXCLUDE anything they believe has even the slightest chance of ever encumbering a clear title THATS WHY ITS BEST TO HAVE YOUR ATTORNEY (Not your realtor or brother in law lol) CAAREFULY REVIEW THE SCHEDULE A AND B EXCEPTIONS ON THE POLICY...........

John T

 

[noncompos]

You are so right!...Title Insurance co's are Insurance Co's; they make their profit, just like auto or fire insurance co's, by maximising premiums and minimising paying out on claims...it's their profits they're worried about 99% of the time, with maybe 1% concern for the policyholder.

 

[John T]

I reckon they pay out less percentage wise in claims then about any other insurance company right???????? Like I noted above if theres any doubt whatsoever regarding any potential problem THEY SIMPLE EXCLUDE COVERAGE on their schedual of exemptions. Thats almost like a fire insurance policy having an exception to exclude coverage if burning or heat causes the damage lol

Seriously in their defense, many of the things they exclude simply have to be cuz they have no way of knowing everything and its items that cant be reasonably discovered. If they did cover alllllll those things then the rates would skyrocket and we would be forced back to the abstract n attorney title opinion days but heyyyyyy more business for us attorneys lol

John T Country lawyer

 

[730 virgil]

i once bought a house after closing it came out a lender had not signed off on a deed once upon on a time.
so i'm thinking do i have a house or not. it was just a paper work mess it. how could we go thru closing with this paper work mess up and get a clear title and then be told there is a problem.