I have a slightly different situation than the other thread on the same subject.
My boss's former client, years ago, had 40 acres.?ÿ They split the 40 into (2) 20 ac tracts with an access easement through the South tract to get to the North tract with the intention of selling both 20 ac tracts.?ÿ The tracts where sold to two individuals and the easement was used by the N tract.?ÿ Fast forward to today and we have a new client who has purchased both 20 ac tracts.?ÿ The owner wants to keep the tracts separate?ÿ in case "He ever wants to sell the North 20 acres."
Question 1-?ÿ Did the easement ever exist since at the time it was created both tracts where under the same owner??ÿ I would say yes.?ÿ Maybe it wasn't created correctly, but they did what they did.?ÿ They did what they wanted to do, and the subsequent owners' used the easement for its' intended purpose.
Question 2- Does the easement still exist??ÿ Was the easement automatically vacated when our client bought both tracts??ÿ What happens if the current owner wants to market the N tract??ÿ It's kind of hard to market a property with no access.?ÿ
I guess that was more than 2 questions.
The standard in my state is to grant or reserve the easement when he sales one of the parcels.
Why not just include the easment in the deed??ÿ
I guess I should expand on my first answer.?ÿ To question 1, if the owners of the two parcels were using the easement then it existed in some form.?ÿ My answer to question 2, is no it does not existing now that both parcel are under the same owner. My $.02
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If the easement was not expressly mentioned in the Deed to the north parcel it probably arose by implication.
If the north was granted first then it was included as necessary to complete enjoyment of the grant.
If the south was granted first then the authorities are more mixed, some courts don??t allow implication in favor of the grantor retaining the easement.
I'm not sure which tract was sold first. The tracts & easement where created simultaneously by a lot split plat (a subdivision that is exempt from the subdivision regulations). I don't have the deeds in front of me, but they just reference the recorded plat.
I guess that is probably the best way, but for a variety of reasons (owners, title company, tradition) local custom is to show any changes to the deed on an updated boundary plat. I see a tough sell to my client justifying why he will need a new survey to revive an easement that he doesn't understand is vacated.
My take is the easement doesn't exist now due to merger of title.?ÿ Whether it ever did doesn't matter now.
If the owner sells the tract that need access then he grants with the sale a new easement to the tract.?ÿ If the owner sells the tract that is burdened by need of the easement to access then he needs to reserve an easement to get to his remaining parcel.
Not that hard to do, mistake if not done correctly.
If the location of the easement will not be changing, you could still reference the recorded map. Write up a suggested description for the north parcel that grants an easement over the south parcel. Word it as conveying in the location as shown on the map, but not as if including an already existing easement. Needs to be fresh conveyance. Easement offers of dedication on a plat can't last forever, so the map reference might not be enough after so many years. The problem with map only, and with what someone referred to as "springing easements" is they tend to run afoul of the rule against perpetuities if attempting to enforce many decades later.
The creation of the easement cannot be determined without knowing a few things. If the split of the property is acco.plished by the map through an owners certificate, the easement was created through that document snd does not extinguish with unity of title without formal vacation. The exception is communities where unity of title joins parcels for ownership and planning purposes.
If any other document created the easement, the language will answer many of the questions raised. We tend to forget the form of document is just as important as order. The best answer to the important question was given. Reserve the easement at sale and refer to the old map for location purposes only...
Depends...
How did the client take title? Did the surveyor prepare a survey and metes and bounds that consolidates the tracts or did the surveyor create a map and metes and bounds for each individual lot? (IE tract 1 and tract 2)
A merger of title may still happen. However, if the latter was done at closing, the owner can obtain a subdivision exemption letter from the zoning board if they ever want to sell the parcel.
As regards the easement: it may have to be formally vacated. If not, the easement will be enforcable once the parcel is sold.
First question, "Is there an actual constructed driveway within the easement?" "If so, is it used to access the the second tract?"
If the second tract is sold and the driveway is used then there is no need to rewrite the easement, as it has been automatically recreated by acquiescence. I say that in order for the easement to disappear the seller of the second tract must affirmatively state that the easement no longer exists. I believe that merger of title is a false concept. Easements are most often written for the benefit of a tract of land, not for a person. In general if an easement were to benefit a person, despite what the language says, it is a license not and easement. The main reason to write an easement is to unequivocally fix it's location.?ÿ As long as two separate tracts of land exist, the easement exists, despite who owns same. Merger of title can only be forced on to a common ownership if the tracts do not meet the criteria to stand alone as legal tracts, and the requirement of merger must be clearly stated by statute or common law.
Paul in PA
An easement to a person is an 'easement in gross'. It may or may not have charachteristics similar to a license, but they are different things...
The split was accomplished by a owners' certificate on the map as you describe. The owners' certificate is a little vague concerning the creation of the easement. It simply states a 30' easement is to be granted for ingress/egress purposes to the Northern tract as shown on the map. Does it matter that it wasn't dedicated to a municipality, other government entity, HOA. etc.?
Our client took title by deeds that reference the lot split plat.
