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.
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Maybe you create a corporation that you own, but technically speaking, you're not the owner of those rights anymore. The company is.
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.?ÿ I have even seen these filed of record even though they "technically" don't exist until title to the dominant estate is conveyed.?ÿ 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.?ÿ
California statute has not caught up with reality yet.
Merger of title is usually applied in the reverse of how it?ÿ is being discussed here. Usually it comes up in situations like this:?ÿ
1. A landowner owns a parcel that is served by an easment across another's land.
2. The landowner acquires the servient parcel.
3.?ÿ 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.?ÿ
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.
I don’t believe that’s correct. When creating an easment you are granting rights to an individual who owns the dominant estate, not to the dominant estate itself.
I don't believe that's what he's saying...
Remember that guy that posted here a month or so ago; he owned 4 1/2 lots in the corner of a plat and was running a nursery business as one parcel, using all of the area within the platted lots. he finds out that there is a drainage and utility easement along an interior line of the lots he owns. The dominant estate was drainage and utility and it was created with the plat. the easement exists whether he likes it or not.
In California subdivision maps can't create private easements. They can dedicate easements to the public in the owner statement.
Suppose you have a two lot Minor Subdivision (called a Parcel Map in most counties). Parcel 1 depicts a 20' easement to Parcel 2. Normally Parcel 1 would convey with a reservation of the easement or Parcel 2 would convey together with the easement.
Further suppose through oversight Parcel 2 conveys forgetting to mention the easement, does it automatically come into existence since it is shown on the map?
Walt Robillard preached against this sort of thing in a seminar I was at 15-20 years ago. He even went so far as to say if a there is a pre-existing easement and a person ends up owning the dominant and servient estate, then the easement is automatically extinguished.
In NY unopened paper streets on a subdivision map have been determined to be private easements for those lots bordering it. Still not an easement over your own property, you are merely using your own property instead of an easement when travelling in front of your lot because title goes to center of road. Also been held that the offer of dedication will not last forever and does expire after a long period of time, although no specific time has been specified to my knowledge, depends on circumstances. But a perpetual offer of dedication has been found to violate the rule against perpetuities. The easement does not because it comes into existence on filing of the map and exists alongside the public easement (if dedication accepted) and survives discontinuance of public easement.
Yes but that easement was preexisting before he owned all 4 lots correct? That easement was also likely granted for public utilities and drainage purposes. If that's the case the those easement rights are granted to the city or another utility entity.
Interesting Duane. I'm curious to know what your knowledge may be of how the rule against perpetuities would work with unopened "perpetual easements" for access granted 100+ years ago via condemnation proceedings. The dominant estate that condemned is the same, but the servient estate (sometimes multiple estates) have changed hands many times over the past century.
If an easement was taken then it came into existence at the time, so the rule wouldn't apply. You might look at abandonment of easement; the hard part of that is finding evidence of intent to abandon to go along with non-use.
Rule against perpetuities is basically that you can't place a possibility of a future burden on the property for an unlimited time period. Comes from policy that in the U.S. we want people to have free and full use of lands in order to make the best use of them. But the rule itself can be very complicated and attorneys have regularly avoided liability for screwing it up because it's so complicated. On the other hand the idea is pretty basic. You can't sell a parcel and reserve the right to grant interests in it to others at some unspecified time in the future. If I recall, some states have statutes that give a time period for different things, like subject to 99 year leases, 50 year limit on offers of dedication, etc..
