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BrokenMouse wrote: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?

NY_Sea wrote:

BrokenMouse wrote: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.

BrokenMouse wrote:

swtlilsoni wrote:

NY_Sea wrote:

BrokenMouse wrote: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?

BrokenMouse wrote: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?