From Richmond & Fishburne's Legal Blog: "In its opinion in?ÿBurdette v. Brush Mountain Estates, LLC, the?ÿSupreme Court of Virginia?ÿheld that a reference to an easement on a plat does not -- without more -- bind the successor in interest to the servient tract.
The referenced-plat, which was signed by the Davises and Brush Mountain Estates, included a note that stated "50' private easement for ingress, egress, and public utility for the benefit of [the property owned by Brush Mountain Estates] is hereby conveyed."
Notwithstanding the note on the plat, Burdette argued that she should not be bound by the 50' easement because the Davises had not granted it by a deed or other valid instument of conveyance. Brush Mountain Estates countered that the conveyance?ÿwas?ÿaccomplished by the combination of the reference to the plat, the general "subject to" language, and the note on the Plat which purported to convey the easement.
The Supreme Court of Virginia held for Burdette.
According to the Court, the plat, and the note thereon, do not constitute an "instrument of conveyance" and valid "words of conveyance" (although the Court also held that a deed is not statutorily required in order to convey a binding easement, since an easement is not an "estate" governed by Code of Virginia Section 55-2).
Unfortunately, the Court does not provide a thorough explanation of why the phrase "easement ...?ÿis hereby conveyed" on the Plat note does not suffice as the operative conveying-language.
Our take-away from?ÿBurdette?ÿis that the Court wanted a "bright-line rule" regarding the ability to convey an easement by a plat alone, and in?ÿBurdette?ÿthe Court has articulated such a rule: a plat notation, alone, is insufficient to convey a binding easement."
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M.D. Turk, Judge
"In this appeal, we consider two questions: (1) whether the
provisions of Code ?? 55-2, requiring that estates in lands be
conveyed by a deed or will, apply to the conveyance of an
easement; and (2) whether the circuit court erred in determining
that two certain parcels of real property are encumbered with a
50-foot easement for ingress, egress, and public utilities.
Although we conclude that Code ?? 55-2 is inapplicable to the
conveyance of easements because an easement is not an estate, we
will reverse the judgment of the circuit court. The deeds at
issue, along with a plat incorporated therein for descriptive
purposes, do not contain operative words manifesting an
intention to grant an easement."
?ÿ
I have a 10' right-of-way that has served the property since at least 1892. The R/W crosses a few properties and is shown on those plats. The R/W is described in a deed and the other deeds have "boiler plate" language basically referencing the plats. The title examiner has stated that he did not find any deeded easement to the current owners.
How are VA Surveyors handling this situation? And do I have any recourse since this is a R/W not an easement??ÿ
A right-of-way is an easement. It is a particular type of easement, with a large bundle of useage rights. In Massachusetts it is defined as an easement that carries all the rights that a road is generally used for - travel, parking, utility installations. In VA, the bundle of rights in a right-of-way may be different. If the easement is described in a deed, is that deed in your chain of title? Is the title examiner an attorney??ÿ If not, I would say your recourse would be to consult a real estate attorney on this matter.
If there is a reference to the plat in the deed then the plat is considered to be a part of the deed.?ÿ Sounds like they set precedence that no deed shall reserve an easement. That easements can only be deeded to a party and not reserved by the party selling a property.
Let me read it, the Court may be right under the facts of the case.?ÿ My initial impression is they are being overly strict but maybe they are right.
Did everyone in the 17th and 18th centuries speak with a "lifp"?
from the opinion:
Section three of the English Statute of Frauds provided, in relevant part:
[N]o Leafes, Eftates or Interefts, either of Freehold, or Terms of Years, or any uncertain Intereft, not being Copyhold or cuftomary Intereft, of, in, to or out of any Meffuages, Manors, Lands, Tenements or Hereditaments, fhall ... be affigned, granted or furrendred, unlefs it be by Deed or Note in Writing, figned by the Party fo affigning, granting or furrendring the fame.
This is important in understanding the case:
The "subject to" language at issue in?ÿStrickland?ÿreferred to easements on a specific plat; whereas, the "subject to" language in both the Roberts/Davis deed and the Davis/Burdette deed fails to mention a specific easement or plat. Further, the lots comprising the dominant estate in?ÿStricklandwere identifiable on the referenced plat, but the Plat here depicts a 50-foot easement across Parcels "A" and "B" and continuing to real property not included in the survey and identified only in Note # 6 as "Tax Parcel 27(A)40." Looking solely at the Plat, a person could not determine the size of Tax Parcel 27(A)40 and thus could not glean any information about the extent of the burden imposed on the servient estate.
Emphasis by me
They seem to be factually distinguishing other Virginia cases which seem to indicate they should've upheld the easement; this is their reasoning for holding in this case there is no easement.
We are persuaded by the rationale in?ÿDavis?ÿand conclude, as we did there, that the "subject to" language in the Roberts/Davis deed and the Davis/Burdette deed operates only as a phrase of "`qualification and notice'" and "`does not create affirmative rights.'"
and
Furthermore, the Plat alone cannot serve as an instrument of conveyance. When a deed incorporates a plat by reference, the plat is considered part of the deed itself but only for descriptive purposes to establish the metes and bounds of the property being conveyed.
Wow, what a bad decision, unless I am missing something. This would be devastating in many states where most modern easements are created like this.?ÿ Is this rare in Virginia? In Alaska this would invalidate most of the roads in the state that are not state highways.?ÿ
The court says a deed is not required to create an easement "so long as ??????the intention to ??grant? is so manifest on the face of the instrument that no other construction could be put upon it.?????. The plat says?ÿ????50' PRIVATE EASEMENT FOR INGRESS, EGRESS AND PUBLIC UTILITY FOR THE BENEFIT OF TAX PARCEL 27(A)40 , IS HEREBY CONVEYED.? The owners of the property signed it. How can an intention to grant be made more manifest? The court seems to prefer?ÿ??hereby create and establish".
The court ends with?ÿ?ÿ"neither the Roberts/Davis deed nor the Davis/Burdette deed contained the necessary words of conveyance.", but they had already established that a deed was not required to create an easement, so this seems to imply that a grant of an easement might be extinguished by neglecting to mention it when conveying the servient parcel to a new owner. I am sure they did not intend this, but I am also sure this will be argued based on this decision.?ÿ?ÿ
As to your questions. A right of way is an easement (usually) so that will be of no help. Maybe your only option is to argue a prescriptive easement? But the title company will likely require a court to rule on that. We like to prove title companies wrong, because they often are, but based on this decision they may be right. Maybe a Virginia surveyor will come to your rescue with a statute or a more helpful court case.?ÿ
I totally get it, Burdette doesn't want a bunch of yahoos driving across her property into Brush Mountain Estates subdivision. Can't tell for sure but it seems that maybe the road is not built so there is no implication against Burdette and a prescriptive easement doesn't exist.?ÿ The Court sympathizes with Burdette so found a way to find in her favor.?ÿ There is also a footnote where they essentially say to not apply this case too broadly.
We are persuaded by the rationale in?ÿDavis?ÿand conclude, as we did there, that the "subject to" language in the Roberts/Davis deed and the Davis/Burdette deed operates only as a phrase of "`qualification and notice'" and "`does not create affirmative rights.'"
and
Furthermore, the Plat alone cannot serve as an instrument of conveyance. When a deed incorporates a plat by reference, the plat is considered part of the deed itself but only for descriptive purposes to establish the metes and bounds of the property being conveyed.
They make an argument that in Virginia?ÿ the only part of a plat that becomes part of the deed automatically by reference are the "metes and bounds", but no where do they explain why a plat signed by the owners of the dominant and the servient estates, that states in clear language that a easement is being conveyed , and that was recorded, doesn't actually create an easement. If an easement existed it would not be extinguished by the fact that the deed did not mention it.?ÿ
I would really like to here from Virginia surveyors how common easements like this are there.?ÿ If this is very rare this decision may be a little more understandable.?ÿ
I totally get it, Burdette doesn't want a bunch of yahoos driving across her property into Brush Mountain Estates subdivision. Can't tell for sure but it seems that maybe the road is not built so there is no implication against Burdette and a prescriptive easement doesn't exist.?ÿ The Court sympathizes with Burdette so found a way to find in her favor.?ÿ There is also a footnote where they essentially say to not apply this case too broadly.
Thanks for pointing out the footnote. I hadn't noticed it, but I wish they had explained what differentiates this case.?ÿ
What gives them an "out" in this case is the Court says the Plat was not specifically referenced in the Deeds, just a general "subject to" clause.
Brush Mountain needs to get better Professional representation, like a lawyer not a Land Surveyor to draft their easement documents.?ÿ Do they hire plumbers to frame houses?
I guess I don't really understand how that is an out. I understand the deed cant create the easement with that language, but what I don't understand is how the plat did not create the easement.?ÿ If it did, the "subject to" language would have been sufficient.?ÿ
In PA a recorded DOT ROW map with the Governor's signature on page 1 does convey an easement. PA is not, as may be VA, a Recording State so a plat may not be sufficient notice. I would say a Filed Map Plat probably is sufficient?ÿbut a survey plat not filed as a public document may be considered self serving. Language in the deed or separately a Miscellaneous Document or actual use of said easement at or prior to the time of deed conveyance may have been sufficient?ÿpublic notice. I believe the Court got it right.
One cannot convey an easement to one's self. "Reservation of" or "Subject to" an easement is a condition of a deed that the Grantee is conveying back to the Grantor. It is treated as a part of the sum cost of said parcel and does not need the Grantees signature as it is legally acknowledged by Grantees acceptance of the deed. Tendering money binds a contract as much as a signature.
Another thought is that a Plat may create an easement, but clear language in a deed that conveys a lot per said plat and not mention said easement may?ÿsurrender to extinguish same. The Grantor passing up an opportunity to include same in deed, the Court rules in favor of the Grantee.?ÿ
Paul in PA
I have always counseled my clients that the plat doesn't do anything by itself. There needs to be a conveyancing document that refers to the plan.?ÿ
I am not surprised at all that the easement wasn't created by the plan!
