Right of way. Mention it or not?

I'd mention the book and page where "the right-of-way is specifically mentioned as "not conveyed herewith". , something like this:

There was an easement, recorded at ____book and Page____, however, according to ___Book and page, it was "Not Conveyed herewith".

My opinion is that some slick talking salesman, or realtor, SAID the easement existed (It did) but failed to mention that it was NOT CONVEYED. So, by doing it like this, you place a piece of history in front of the title examiner, to explain why it does NOT exist. Helps to extinguish it.

Also, to explain why the neighbor is mad, but has no case. Helps to UN establish something that was NOT to be conveyed with the property. (While the neighbor wants to establish it)

Nate

That's one of the hazards of quit claim deeds. He may have an access easement that was granted by somebody who never had that right.

I've got a bridge for sale. Wanna buy it, I'll quit claim it to you.

Also, just because the neighbor says he has a right, but your client says he doesn't, and there is no evidence of it, showing it on a recorded survey may in fact harm your client. But noting it will CYA. I'd make sure I had all my homework done before making such a note.

$0.02

I'm a little bit confused.

If his predecessor quitclaimed the R/W into him then that only transferred it if it existed. It appears to have been extinguished earlier.

I would make a note following the history of the R/W leading the way to it no longer existing.

Also-appurtenant easements do not have to be mentioned in subsequent Deeds to transfer. They are presumed to transfer with the dominant tenement.

His deed "quitclaims" a 30-foot right of way and further states that it has been used since a certain date Quitclaims to whom?
Looks like the ROW still exists, unless you can find documentation vacating it. Show it and inform both parties of their options on how to get rid of it forever, if they choose to do so, allow for the time needed to do so before you complete your work. Problem with easements, few provide for their demise when no longer required, that needs to be part of the language within the document that creates it in the first place, something I always tell my clients that when they need to create an easement for anything other than a public ROW, their attorneys seldom will advise them of that precaution.
jud

The wording of the original document creating the easement is critical. Did it have an ending date? If not, then the recipient is in control of the easement.

"Not conveyed herewith"

I don't know that it's possible for a party to convey a property without also passing on a right that is appurtenant to the land.
Perhaps if he had earlier relinquished the right.
Just thinking out loud here, asking really. The concept is new to me.

Don

You can't "quitclaim" a right-of-way. You can grant a right-of-way across your parcel, and you can buy a parcel which include a right-of-way across someone else's parcel, but a "quitclaim" doesn't apply to an easement (right-of-way).

All good comments. Thanks!

Here are a few more facts, names are fictitious:

In the beginning, 1974:

Jones owns a house. The land runs across the road to the pond.

Jones sells his house to Smith, but keeps his strip of land on the pond side of the road. Jones deed "conveys herewith a 30 foot right of way across my remaining land for bathing and boating for the owner of the premises and their invitees".

Smith later sells his home to Johnson, including herewith a 30-foot right of way..

Johnson later sells to Flubot. "Reserving to the grantor The 30-foot right of way. This right of way is not included with the within conveyance"

Flubot later conveys the property to Bob. No mention of the 30-foot right of way.

Bob later conveys his property to "the present neighbor". Bob writes "also conveying with quitclaim covenants a 30-right of way I have been using continuously since 1983..."

Here we are today. Johnson who withheld the 30 foot right of way has since sold all his holdings and fled the country, so to speak. What is the status of this ROW? Did it disappear since it was specifically stated to not be conveyed? Does Johnson still have it to convey by corrective deed?

> I'm surveying a shore lot. The neighbor across the road told me he was supposed to have a 30-foot wide right of way across my clients lot to go to the pond. His deed "quitclaims" a 30-foot right of way and further states that it has been used since a certain date. When you follow his deeds back a couple owners, the right-of-way is specifically mentioned as "not conveyed herewith".

I am a little confused who "quitclaimd" to whom. Quitclaims might quit all "assigns forever, all the right, title, interest, claim and demand which the grantor(s) has in and to the real property" (standard language I have seen).

Whoever quitclaimed to who, would be forever. It isn't just an "easement" if I read it right, unless they quitclaimed the rights to pass across only.

If someone owned all of a strip of land by virtue of a quitclaim (the neighbor), and purposely did not add that strip to the next owner, that last owner of the quitclaim might still own it.

Regardless, it may be an encumbrance on the property. It may cause a cloud on the title that might need cleaning up. I think it is best for you to show it. It is probably in your client's best interest as well, because an encumbrance on the property might cause large problems down the road, and it might be easier to clean it up before problems occur.

Whoever pointed out that you can quitclaim anything to anyone, and therefore they don't mean that much, is right----only if the grantor had no rights title or interest to what he is granting. The problem is that if s/he did have any rights, he is signing them away....and that isn't a maybe; it's gone. Careful what you quitclaim, I say.

"Johnson later sells to Flubot. "Reserving to the grantor The 30-foot right of way. This right of way is not included with the within conveyance""

Johnson just created a new 30' wide parcel to which he retains ownership!

The problem here is the use of the word "convey". You do not "convey" an easement, you grant it. "Convey" refers to the transfer of property itself, and nothing else.

"Not conveyed herewith"

You are correct.

A grantor cannot keep an appurtenant easement is my understanding.

From what I read now, the r/w goes with the land and it's probably good that Johnson left the country. It sounds like he was attempting to retain the right to cross Smith to go swimming even though he no longer lived there.
Just MHO.

Don

Based on that, I think right-of-way exists.

Just read this further explanation. I would say, if I am reading it right, that Johnson still owns that strip (or that right-of-way). I am still confused whether that transfer of 30' was a quitclaim or a grant of an easement. It causes an encumbrance across Smith's land, the way I read it, and the last owner of the adjoining land doesn't have a right-of-way to the pond.

The right-of-way still exists. It follows the owner of the land across the road, whomever that may be. The document creating the easment indicates it goes with the premises. Johnson could not sever the easement from the premises, hence his wording has no effect. There is a proper way to extinquish an easement. That has not been done.

If I understand it, and I might not, Johnson never owned the 30 foot strip he just has an easement right which may explain the "not conveyed" statement. I am not sure if the quit claim extinguished the easement or not, but title has never changed hands. Smith still holds title to the property and unless he has taken some action to extinguish the easement I would presume that it still exists.

You're right.

I re-read the clarification. He says "....conveys herewith a 30 foot right of way across my remaining land for bathing and boating for the owner of the premises and their invitees".

That would not be a quitclaim, and would be an easement that goes with the transfer of the property.

> All good comments. Thanks!
>
> Here are a few more facts, names are fictitious:
>
> In the beginning, 1974:
>
> Jones owns a house. The land runs across the road to the pond.
>
> Jones sells his house to Smith, but keeps his strip of land on the pond side of the road.
>
> Smith sells to Johnson...
>
> Johnson sells to Flubot. "Reserving to the grantor The 30-foot right of way...
>
> Flubot conveys to Bob.
>
> Bob conveys to "the present neighbor". Bob writes "also conveying with quitclaim covenants a 30-right of way I have been using continuously since 1983..."
>
>

A couple of people responding seem to be under the impression that the 30' RW is a fee-owned RW. In most jurisdictions, this would be an easement, a use interest as opposed to an ownership interest. So in this jurisdiction, are RW's presumed to be easements or are they presumed to be fee interests?

The rest of my response presumes the RW is/was an easement.

Did Johnson own the land on the pond side of the road when he sold the non-pond side? If he owned both sides at the time, he could effectively extinguish the RW by doing as he did. But the way I read your facts, Johnson only owned the dominant estate (non-pond side).

If Johnson only owned the non-pond side, then he cannot reserve to himself a use right attached to the ownership interest if he completely divests himself of the ownership interest. The effect of his statement reserving and not conveying the RW adds confusion to the title history, but cannot extinguish a right he did not create and which he cannot retain for himself without retaining ownership of some portion of the property of the dominant estate. His reservation statement therefore has no real effect.

It appears to me that Bob realized that there was some confusion in the record as to whether he had valid written title to the RW, for good measure documented in the conveyance a use history to provide the basis for a prescriptive claim, and invokes the "quitclaim covenents" to say essentially "to the extent that my claim to the easement is valid by written title or by use, I'm passing that right on with the conveyance."

Normally, an easement once created, unless subsequently effectively extinguished by those with authority to do so, does not need to be specifically mentioned in the deed conveying ownership title of the affected properties to also continue the easement right or encumbrance. The right or encumbrance travels with the land and not with any particular holder of title to the land.

To summarize, I believe that the easement still exists but that the present neighbor would be wise to hire legal counsel to do what needs to be done to clarify that in the record.

That puts you in a somewhat difficult position of having to note and show something your client either believes does not exist or wishes not to exist. IMO, you have to show it. Since the quality of title is actually a legal question that is not completely within your area of expertise, label it something like "Easement per [1st deed it appears in] - See Note #3", and then Note #3 explains, in sufficient detail, the chain of title and history you've presented here.

Make it clear, both in conversation and in a follow up letter to your client that you are not making a particular statement about the quality of the easement title even though you must show the easement. Recommend to your client, now rather than waiting until your map is complete, that he should seek a legal opinion as to the quality of his neighbor's title in the easement and that you will have to show the easement regardless of the opinion obtained, but may be able to incorporate the attorney's remarks into your notes.

I wouldn't omit the easement from the drawing short of a written agreement between both owners to extinguish it, or a court judgment that it no longer exists, either of which seems unlikely.

I also agree that it still exists, based on the additional information. When the original owner split the lot and sold the house on the lake, he retained the easement. It stays with the land until such time it is extinquished.

In which case I would reference the original deed that split and created it, show the dashed line, and let the dust settle. It seems like the current lake house owner may have issues with his title company too.

Wonder if the term "boating and bathing" can include construction of a boat ramp if they so choose. I'd say yes. And once they are in the water, even a dock.

Good luck