Hey Jack How you doing, still at the city.
This was just something that came up last year and I decided to throw it out and see what other had to say.
I really don't think the city can nullify a platted building line by ordinance anymore than they could abandon a utility easement without the consent of all the dominant estates. I am willing to be wrong on this and wanted to see if anyone had any firsthand knowledge.
Adam,
The warranty form of deed just gives some small amount of assurance that the one executing it is authorized to do so, or actually has the interest purported to be conveyed. The deed is just a general term for a contract that conveys interest in real property. An easement is an interest in real property even if not a possessory interest.
The important distinction in my understanding is that an affidavit normally represents facts attested to rather than a transfer of any interests.
But one could write a contract releasing or transferring easement interests and call it whatever they want to probably. As long as it contains all the elements to make it a valid contract (rather than affidavit) and it clearly states the intent then it should work. One of the things that might make it invalid is if it were against public policy, such as an attempt to terminate an easement that is necessary to a particular parcel for some reason. If someone were to try and do that they might use an affidavit so that they could not be held accountable when it later is overruled.
I'm sure there are differences on how exactly this is handled in differing jurisdictions.
> The important distinction in my understanding is that an affidavit normally represents facts attested to rather than a transfer of any interests.
>
That's the point, entirely, Duane... Easements are typically viewed as a "non-transferable" interest. There is a conveyance of the easement right from the original grantor (the servient estate) which attaches the right to the grantee's dominant estate. However, the easement rights (which are appurtenant to the dominant estate) are not transferable by the dominant holder. The holder of the dominant estate merely "releases" the appurtenance, the rights associated with the easement dissolve, and the easement is terminated. There is no "conveyance" as the easement rights, being non-transferable, automatically revert to the servient estate upon termination. No conveyance document is required.
Easements in gross (a non-appurtenant easement held by an individual) are handled in the same way. The dominant party (holder of the easement in gross) simply files an affidavit releasing their interest and the easement rights automatically revert.
Easement rights, being associated always with the servient estate from which they derived, can only revert to the servient estate. Kind of like throwing balls into the air. The balls can be caught and held, but only can be let go of and dropped back onto the servient estate.
JBS
If it's an appurtenant easement it is transferrable but may not be severable from the estate to which it's attached, whether by conveyance or release or whatever. The release may only apply to the one giving it and the easement still transfer with the next conveyance.
This is one of those areas where it's wise to consult with an attorney knowledgeable in local jurisdictional practice in order to make sure whatever document used is accomplishing the desired result.
If I have a land-locked parcel and an access easement across another, and a more convenient access across a different parcel becomes available, I can release the first easement by affidavit that extinguishes that easement and a future owner of my parcel cannot revive the first easement without compensating the burdened estate.
Richard Schaut
Yes, that's quite possible; in fact it might not require any writing at all. It depends.