Did a survey a couple of years ago on a large tract. Came back a year later and surveyed and described an easement from public road. Client gives the paperwork to local lawyer.
Got an order today to cut out a 5 acre piece out of large tract for bank loan to build new house. In doing my research I could not find any indication of the easement (for referencing on my new plat) in the county clerk index. The lawyer used a format that I have seldom seen for the document. In the index it showed up as a warranty deed, so I passed right over it.
Has anyone seen this kind of stuff before? I saw some easement that the COE prepared that were called "Right of Way Easement Deed" before.
Just plain goofy.
John Harmon
That is crazy
.
I have encountered a Title Company manager that insisted that the easement for access to the properties was not transferable with the property.
They also seemed to leave access easements out of the paperwork when properties closed and would not file new corrected deeds.
They were very wrong in taking that view of things and I have yet to understand their reason. It was a no without any explanation.
That one certainly makes it clear that the easement is warranted and owned by the grantee.
0.02
But, that easement also provided access to other parties along its course.
I associate the word "deed" with fee title.
By the way, this lawyer's work is mostly a public defender. Not what you would call one who deals with real estate.
John Harmon
Most do, but the document is clear in its intent, so it accomplishes the intent of giving the Grantee the right to use. That document may describe an easement on top of previous easements but it does not create an ingress egress for others to use to gain access different properties.
jud
By definition a deed is an indication of a conveyance. However, this conveyance may be as restrictive or specific as anyone wants to make it.
By definition an easement is an indication of an allowance or grant. Once again, the grant may be for any specific rights that the grantor and grantee can agree to. I wrote an 'odor easement' for a WWTP once. It allowed the smell of the plant to travel and occupy the lands encumbered by the document.
The document appears to me to be an easement, there is no specific language that conveys any rights (other than ingress and egress), title or interest.
But it's still screwey...
Oh, I agree, it serves the purpose. I disagree with the lawyer's use of the words Warrranty Deed for an easement. The easement was meant to serve other tracts in cluding one beyond my clients' and some before.
When one looks at the county index for transactions this one shows up as a Warranty Deed only without any mention of being an easement.
The customary title for the doc,s around here are: EASEMENT, EASEMENT AGREEMENT,
ACCESS EASEMENT, INGRESS-EGRESS EASEMENT, AND SO ON.
There's right, there's wrong and there's just plain goofy.
stir the pot some more..
John,
Check this out:
I still think it's screwy.
Don't let other's foolishness get under your skin, though. It ruins the taste of the Scotch at the end of the day!
It might be required in your jurisdiction. There's a difference of opinion in the courts on whether one can transfer an easement benefiting third parties. The restatement on real property changed from the no position to yes a few years ago. The problem is the easement will not necessarily turn up in a title search. So, I can see some legislative body coming up with a supposed fix that the easement must be contained in a warranty deed in order to give notice.
