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An Easement to Yourself
Several people have told me; you can’t grant an easement to yourself. The reason being; you own the properties, why would you need to give yourself permission to use it?
I’m of the opinion; you are not granting an easement to yourself; parcel A is granting an easement to parcel B. They both just happen to be owned by the same entity.
What’s your opinion?
TIA
Dougie
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42 Replies
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You can create an easement thru one of your properties to another property you own that describes the use of and purpose of and place restrictions of use and list any rights to others and other terms of use.
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I often see a “Declaration of Easements and Covenants” recorded for subdivisions prior to any lots being sold, so i say it depends on how you go about doing it.
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Funny you should bring that up today: Yesterday I had an attorney tell me it’s fine to write an easement across one of my client’s land to grant an easement to himself.
Not sure how it’s going to work but the client is stopping by today to go over it.
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“Doctrine of Merger”.
Mic drop….
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Well, you can do anything you want. But a court may not enforce it in the future against someone who claims they didn’t know about it, and maybe not even against someone who did know about it. Depends on what type of system you have in the area. One of the biggest problems is getting the transaction to show up in both chains of title in order to get protection under recording statutes. The other problem is it is not a valid contract under normal rules of contract law (hence merger requires complete ownership of both parcels, no outstanding liens, mortgages, etc.).
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“Declaration of Easements and Covenants” – the easements become part of a valid contract when the first lot is sold, and its deed references the land as “…benefiting from, and subject to…” the declaration.
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I’ve called these springing easements sample below
THE CITY OF CINCINNATI (??CITY?), AN OHIO MUNICIPAL CORPORATION, AS THE FEE OWNER OF THE REAL ESTATE DEPICTED ON THIS PLAT (THE ??PROPERTY?), HEREBY RESERVES AND CREATES FOR THE BENEFIT OF THE CITY (THE ??GRANTEE?), A PERMANENT CHANNEL EASEMENT TOGETHER WITH THE RIGHT OF ENTRY AND RE-ENTRY IN AND UPON THE LANDS SHOWN ON THIS PLAT, SAID EASEMENT TO BE AS SHOWN HEREON, FOR THE CONSTRUCTION, PERPETUAL MAINTENANCE, RECONSTRUCTION, REPAIR, AND OPERATION OF THE STORMWATER SEWER SYSTEM, INCLUDING THE SEWER AND SEWER APPURTENANCES OF THE CITY OF CINCINNATI, ITS SUCCESSORS OR ASSIGNS, SUCH EASEMENT TO TAKE EFFECT ONLY AT SUCH TIME AS THE CITY CONVEYS THE FEE INTEREST IN THE PROPERTY OR A PORTION OF THE PROPERTY AFFECTED THEREBY TO A THIRD PARTY (??PROPERTY OWNER?). SAID EASEMENT SHALL RUN WITH THE LAND AND SHALL INURE TO THE BENEFIT OF THE CITY AND BE BINDING UPON PROPERTY OWNER AND ITS SUCCESSORS-IN-INTEREST WITH RESPECT TO THE PROPERTY.
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Yep, seen it done often exactly as describe. Multiple properties owned by the same person. However it can cause problems about who is entitled to use it so one has to be careful with the description and permissible usage.
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Yep, but if no lot is sold…. or…. gets complicated.
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you can’t grant yourself rights you already have.
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I agree with the Doctine of Merger being a cold bath on this one.
And in part the concept of Statute of Frauds in the State of Washington might preclude a conveyance where there is no
monetarycompensation.However, a corridor across ones property can be “declared” and likely be enforceable once a certain event, such as a conveyance, death, compensation etc. has occurred. But why would you want to do what the OP suggests in the first place unless you wanted to dance around the law?
Now, I am no lawyer so don’t pick a fight with me but if you want to chat with one about this very topic, I can link you to her.
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Platted easements through lots owned by the same owner work becasue the deed says lot x of XXX plat. Lot x on the plat has an easment, so the easment is created by the deed.
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The clean way to do it is reserve an easement when you dispose of the property.
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It is statutorily prohibited in the great State of Cali.
Sections 805 & 811 of the Civil Code.
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It all depends on the language in the document.
We haven??t had any issues adding language to survive merger of title. -
In order for an easement to exist you need a dominant and a servient parcel.
Essentially, You cannot limit your bundle of rights to yourself. The only way that can happen is if you sell those rights to someone else that in turn may be granted an easement to access and utilize those specific bundles of rights.
Maybe you create a corporation that you own, but technically speaking, you’re not the owner of those rights anymore. The company is.
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In some necessary situations it is practice to describe an easement (or rights of ingress and egress) and reserve those rights to be dedicated to future estates at the time a conveyance is made. I have even seen these filed of record even though they “technically” don’t exist until title to the dominant estate is conveyed. And in a few cases I have seen title companies act as if the easement exists since it will probably exist in possibly the near future.
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California statute has not caught up with reality yet.
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Merger of title is usually applied in the reverse of how it is being discussed here. Usually it comes up in situations like this:
1. A landowner owns a parcel that is served by an easment across another’s land.
2. The landowner acquires the servient parcel.
3. The two parcels become owned by two separate owners.
4. The owner of the servient parcel sues to eject the owner of the dominant parcel.
Now, this us just conjecture becasue I’ve never seen a case addressing it, but I would think that if the landowner recorded an easment across his own land, thus entering it into the chain of title, and then sold a portion that would become the servient or the dominant parcel, a court would find that regardless of the technicality of the law, the intent was clear to make one parcel subject to the easment, and let it stand.
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Lots of cases on this, which is why it’s an issue. The arguments are not about intent but about who can it be enforced against.
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