property question

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bilboteabaggins
Posts: 31
Joined: Fri Feb 25, 2011 9:41 pm

property question

Postby bilboteabaggins » Mon May 02, 2011 5:19 pm

If you have a question about easements where there is some express right of way over another person's land and the servient land is transferred to another person, is this just basically a question of whether the second owner has notice of the burden? Sort of lost on this.

StyrofoamWar
Posts: 126
Joined: Mon Dec 14, 2009 6:16 pm

Re: property question

Postby StyrofoamWar » Mon May 02, 2011 5:40 pm

Okay, here goes:

You're dealing with an express easement, so I'm going to assume that means it is in the deed. Couple of things to look at to see if it runs to the second party:

1) Is it an easement or a license? A license is just an agreement between two parties, does not need to be written, recorded, etc. These will NOT run to remote grantees, because they are held to be personal agreements between the parties, not actual property interests. An easement is a property interest that needs to be created in writing in compliance with the Statute of Frauds absent certain exceptions. Easements likely run to remote grantees.

There aren't really enough facts here to tell, but since you said an EXPRESS right of way, I would take that to mean it was written down and we're dealing with an easement.

2) Is it an easement appurtenant or an easement in gross? If it is an easement appurtenant, it will run with the land to subsequent grantees because easements appurtenant burden/benefit the LAND, not the owners of that land. From the facts you've given, in which you say that there is a servient ESTATE, it looks like it's definitely an easement appurtenant. Therefore, the subsequent owner of the servient estate will be burdened, unless he can qualify for protection under the recording acts

3) In order to determine whether he qualifies for protection under the recording acts, we need to know (1) what the recording act in this jurisdiction is and (2) if the easement/deed was properly recorded? You mentioned notice, so I'm assuming this is a notice jurisdiction. In order for the subsequent purchaser to get protection under a notice recording act, he must be a subsequent bona fide purchaser without notice.

If the deed is properly recorded, it gives constructive notice to everybody in the world, which means your subsequent grantee who is taking title to the servient estate will have notice and will be burdened by the easement.

Best I could do with limited facts, hope it helps!

bilboteabaggins
Posts: 31
Joined: Fri Feb 25, 2011 9:41 pm

Re: property question

Postby bilboteabaggins » Mon May 02, 2011 5:49 pm

perfect, thanks.




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