Easement Question Forum

[BrokenMouse]

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[NY_Sea]

So easement appurtenant is one that runs with the land, and easement in gross attaches to the person holding that right. Say easement appurtenant is created by grant to a landowner by a neighbor. Landowner never records, but there is plenty of inquiry notice for the world to see. Say neighbor loses her property to the bank, and the bank records without inspecting, thus taking it subject to the easement.

However, say the jurisdiction's statute is a race-record statute (doesn't require notice) and protects the bank/creditor as BFP. So the bank goes and records the property before anyone else. Since notice wasn't required, and the easement was never recorded, does the bank take the land without easement?

Lack of notice is required to be a BFP. A BFP is a purchaser (or mortgagor) for value WITHOUT notice. Since the bank has inquiry notice because if they just went to the property they would see landowner using the neighbors property,they wouldn't qualify as a BFP and really whether the recording statute is a notice or race notice is irrelevant.

[swtlilsoni]

So easement appurtenant is one that runs with the land, and easement in gross attaches to the person holding that right. Say easement appurtenant is created by grant to a landowner by a neighbor. Landowner never records, but there is plenty of inquiry notice for the world to see. Say neighbor loses her property to the bank, and the bank records without inspecting, thus taking it subject to the easement.

However, say the jurisdiction's statute is a race-record statute (doesn't require notice) and protects the bank/creditor as BFP. So the bank goes and records the property before anyone else. Since notice wasn't required, and the easement was never recorded, does the bank take the land without easement?

Lack of notice is required to be a BFP. A BFP is a purchaser (or mortgagor) for value WITHOUT notice. Since the bank has inquiry notice because if they just went to the property they would see landowner using the neighbors property,they wouldn't qualify as a BFP and really whether the recording statute is a notice or race notice is irrelevant.

You don't need to be a BFP in a race-only statute.

[BrokenMouse]

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[3Lmao]

The burden of an easement appurtenant passes automatically UNLESS the new owner is a BFP with no actual or constructive notice. So while you don't need a BFP for a race-record statute, you still need to be one if you want to claim you are a BFP with regards to the easement. The easement wouldn't be extinguished because the Bank would have inquiry notice like NY_Sea stated.

[NY_Sea]

So easement appurtenant is one that runs with the land, and easement in gross attaches to the person holding that right. Say easement appurtenant is created by grant to a landowner by a neighbor. Landowner never records, but there is plenty of inquiry notice for the world to see. Say neighbor loses her property to the bank, and the bank records without inspecting, thus taking it subject to the easement.

However, say the jurisdiction's statute is a race-record statute (doesn't require notice) and protects the bank/creditor as BFP. So the bank goes and records the property before anyone else. Since notice wasn't required, and the easement was never recorded, does the bank take the land without easement?

Lack of notice is required to be a BFP. A BFP is a purchaser (or mortgagor) for value WITHOUT notice. Since the bank has inquiry notice because if they just went to the property they would see landowner using the neighbors property,they wouldn't qualify as a BFP and really whether the recording statute is a notice or race notice is irrelevant.

You don't need to be a BFP in a race-only statute.

This was my thinking. No notice required. So does the easement get extinguished?

Edit: Realized you were talking straight Race jurisdictions and not race-notice... Lets hope I read more carefully on MBE day lol

[BrokenMouse]

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[3Lmao]

So easement appurtenant is one that runs with the land, and easement in gross attaches to the person holding that right. Say easement appurtenant is created by grant to a landowner by a neighbor. Landowner never records, but there is plenty of inquiry notice for the world to see. Say neighbor loses her property to the bank, and the bank records without inspecting, thus taking it subject to the easement.

However, say the jurisdiction's statute is a race-record statute (doesn't require notice) and protects the bank/creditor as BFP. So the bank goes and records the property before anyone else. Since notice wasn't required, and the easement was never recorded, does the bank take the land without easement?

I have been looking everywhere to find an answer to this and I just can't lol. I guess even though it doesn't seem fair, the Bank would be able to take the property without the easement under a pure race recording act.