I’ve got a screwed up mess with a bank ordering a survey to sort out exactly what happened, post mortem. I could write a book on this one, but I’ll try to keep it simple.
In 2005, Owner A bought 2 adjacent parcels. Parcel 1 is a smaller tract that has access to a road, and parcel 2 is larger, but has no road access. Parcel 1 is the only lot (then and now) that has a house on it. Owner A originally envisions chopping these parcels up into 12 lots, but the county rejected that, so he instead chopped parcel 2 into 3 lots, one of which slightly overlaps into parcel 1. He also attached an ingress / egress easement to these 3 new lots, which encumbers parcel 1. Two of the new lots were sold in 2007, via warranty deed, including the lot that slightly overlaps into parcel 1.
In early 2012, with parcel 1 going into foreclosure, the owner tried to quit claim parcel 1 to another of his creditors (to satisfy a debt) who has since moved in. This quit claim does reference the ingress/egress easement.
Of course, the bank viewed the quit claim as a fraudulent transaction and proceeded to foreclosure on parcel 1 anyway. However, the bank is apparently willing to work with the quit claim grantee to help him acquire the property legally. Now, keep in mind that parcel 1 serves the two lots sold in 2007 for access, and there is a slight overlap issue between the original boundary of parcel 1 and one of the lot sold in 2007. However, the bank foreclosed on the original deed for parcel 1, with no mention of the new ingress/egress easement or “less out” of the overlapping lot.
But here’s the real kicker … since the buyer in 2005 was going to tear down the house as part of his subdivision plans, he didn’t care that the new ingress/egress easement ran through the house. But now that those plans have fallen apart, what’s left is the occupied house sitting in someone else’s access easement.
So, getting to the original question, does foreclosure undo these subsequent transactions, to the extent that they affect parcel 1, and there is no senior rights overlap, and there is no valid ingress/egress easement across parcel 1? I do not believe the mortgage holder “signed off” on any of these changes.
When was the mortgage made? Prior to the creation of the three lots and easement or afterwards? If prior, how the heck did he sell things off without partial releases of the mortgage? Cash????
Are the back lots still empty and unoccupied? If occupied, there must be a prescriptive easement for the current area used for ingress/egress as they can't be driving through the house.
> When was the mortgage made? Prior to the creation of the three lots and easement or afterwards? If prior, how the heck did he sell things off without partial releases of the mortgage? Cash????
>
> Are the back lots still empty and unoccupied? If occupied, there must be a prescriptive easement for the current area used for ingress/egress as they can't be driving through the house.
I think, the senior rights, of the mortgage holder, would hold if the mortgage was made before the lots and easements were created, if there were not any "partial releases".
The lender would likely have to have noticed the potential claimants during the foreclosure process. If they did provide notice, the foreclosure could stand. If not, they haven't foreclosed against their claims for the easement or the overlapping portion.
The outcome also may hinge on whether you are in a lien state or a trust state and how the trust deed foreclosed upon was formulated.
JBS
> So, getting to the original question, does foreclosure undo these subsequent transactions, to the extent that they affect parcel 1, and there is no senior rights overlap, and there is no valid ingress/egress easement across parcel 1? I do not believe the mortgage holder “signed off” on any of these changes.
The short answer is "yes". If the easements were executed without the agreement of the mortgage holder, they do not encumber their estate. It's worth noting also that the same would be true of boundary agreements executed without the approval of the mortgage holder.
Lady wanted me to divide up the property before she was foreclosed on . I told her eventually this would came to light , she did not care . I also got the feeling her coo coo was out of the clock.I also worried I would not be paid.
The City did not require the lien holder to sign the recorded plat so they would not stop it . I told her I would not be associated with this type of transaction. I rode by the site yesterday flagging all over the place , Work getting scarce again .
Thanks for the responses. It seems like we are in agreement that the subsequent transfers that affect parcel 1 may be "null and void" if the bank did not release their interest, which is what I was thinking as well. I'm sure the bank has an Army of lawyers to sort through this, I'm just trying to present as much information on the survey as possible, and I'm sure there will be questions.
To answer the questions, the mortgage was made when the parcel was purchased by the subdivider, around 2005, and predated the other transfers and easements. Also, the back lots are vacant, apparently owned by a corporation in Israel, and there is no sign they were ever accessed, as the access easement is overgrown in most places, except in the area where it cuts through the house.
Easements Are Relocatable...
as long as the original purpose is served.
Since the subdivision was denied the requirement to demolish the house was
also made null.
Paul in PA
Easements Are Relocatable...
> as long as the original purpose is served.
Yeah, but if the original grant is void against the estate that the mortgage holder has after foreclosure, there is no basis for any claim other than easement by necessity. How that is resolved will vary from state to state. In Texas, it is possible to own a piece of property with no right of access. So, while the necessity may exist, the burden upon adjacent owners to provide the necessary access may not.
Easements Are Relocatable...
I agree. The owner of the "easement" may have a big problem. In California the Deed of Trust is pretty much universal because it doesn't require a Judge to foreclose. Title is transferred to the Trustee (usually a Title Company) such that they must approve things like granting easements and adjusting boundary lines.