I suspect Paul is right about lack of notice.
Notice often seems to be the elephant in the room the Court doesn't explicitly mention but it can be seen there between the lines.
Obviously the Opinion writer is uncomfortable making Burdette subject to the easement under these circumstances.
I do know that when an easement is left off of the deed of conveyence, that easement is gone.
The local title companies and attorneys make that mistake more than known and I always get blamed because they overlooked it or I was told by the seller they were not continuing the easement.
When people sell land to adjoinging property owners, they usually do not want to let them have an easement because they can get there from another property.
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I'm thinking this is different from a subdivision plat, more of a record of survey.
I wouldn't want to try and convey an easement with a record of survey alone. That wouldn't fly here. The drawing would need to have an accompanying description and deed attached that did the conveyance.
If it's a dedicated subdivision plat then that's a different issue.
I do know that when an easement is left off of the deed of conveyence, that easement is gone.
The local title companies and attorneys make that mistake more than known and I always get blamed because they overlooked it or I was told by the seller they were not continuing the easement.
When people sell land to adjoinging property owners, they usually do not want to let them have an easement because they can get there from another property.
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It is well settled in most states that an appurtenant easement transfers even if not specifically mentioned. Not mentioning an existing easement in a Deed transfer does not automatically extinguish the easement.
Dave, I believe you.
It has always been my understanding, when someone grants any and all title and rights that exists on a property to another person, all their rights and title transfers be they spelled out by metes and bounds or not.
Half the newer deeds merely state new Grantor to new Grantee and for what is being conveyed will merely make reference to the content of some ancient deed description prepared before 1950 and may or may not give book and page and mostly rely upon the original Grantor and original Grantee and date of the ancient document.
This small group of people are responsible for half of the exisiting property transfers and get loans and whatever they want without a survey as they are the bank or hold notes on the bank and most of the time their name never is on any document as they hide behind a straw man or obscure Acme, Inc persona.
Local authorities do not share that belief (they do as told or get run out of town), especially the existing Title Company owner and Title Examiner, who stands by her choices to deny the rights of others at will. (truth be told, it all goes back to long existing problems between our local 1%ers).
This place is prime again for a self supporting well educated lawyer to come into town and legally outwit the morons sittin in office and making decisions based upon?ÿ what Uncle wants instead of what Uncle has no claim on.
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Dave, I believe you.
It has always been my understanding, when someone grants any and all title and rights that exists on a property to another person, all their rights and title transfers be they spelled out by metes and bounds or not.
Half the newer deeds merely state new Grantor to new Grantee and for what is being conveyed will merely make reference to the content of some ancient deed description prepared before 1950 and may or may not give book and page and mostly rely upon the original Grantor and original Grantee and date of the ancient document.
This small group of people are responsible for half of the exisiting property transfers and get loans and whatever they want without a survey as they are the bank or hold notes on the bank and most of the time their name never is on any document as they hide behind a straw man or obscure Acme, Inc persona.
Local authorities do not share that belief (they do as told or get run out of town), especially the existing Title Company owner and Title Examiner, who stands by her choices to deny the rights of others at will. (truth be told, it all goes back to long existing problems between our local 1%ers).
This place is prime again for a self supporting well educated lawyer to come into town and legally outwit the morons sittin in office and making decisions based upon?ÿ what Uncle wants instead of what Uncle has no claim on.
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It's really one of the most basic common law principles in property law, it wouldn't take an especially educated lawyer to win that argument.?ÿ
I'm thinking this is different from a subdivision plat, more of a record of survey.
I wouldn't want to try and convey an easement with a record of survey alone. That wouldn't fly here. The drawing would need to have an accompanying description and deed attached that did the conveyance.
If it's a dedicated subdivision plat then that's a different issue.
You are right, a record of survey wouldn't usually work becasue it is not in the chain of title and not signed by the landowner, but this was more than just a record of survey. It was a boundary line adjustment, so it is integral to the chain of title and was signed by the owners.?ÿ
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I like how they resolve the case at the appellate level by remand for entry of an order by the trial court.
In California they would just reverse and let the parties start over.
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Pretty messed up, but you can't convey an interest to a 3rd party generally.?ÿ The court didn't base its decision on that, but could tell it was an influence.?ÿ The release of the option doesn't make Brush Mountain a party to the conveyance of parcel B.?ÿ So attempt to grant an easement to Brush Mountain in a deed from Roberts/Harvey to Davis is a problem.?ÿ Especially when Davis is trying to grant the easement over property acquired from Roberts/Harvey in this transaction and over property (parcel A) Davis already owned.?ÿ An easement over just "A" or just "B" doesn't do anything.?ÿ But I agree that "subject to easements of record.." should not be enough to "create" an easement by making one search out "anything" that might have created one.?ÿ It's more of a statement that the grantor doesn't know of any (let alone grant any), but does not warrant that there aren't any.
Different states have different rules. Sounds like Virginia is ruling much like it would be here.
Here a boundary line adjustment map would just be an attachment to a legal description and deed, it can't create easements and deeds by itself, they would need to be filed to make it all work.
The annoying thing is to do what has been allowed, then have a court upset existing procedures.
This is the Brush Mountain parcel:
http://realestate.montva.com/Datalets/Datalet.aspx?sIndex=1&idx=6
This is the Burdette parcel:
http://realestate.montva.com/Datalets/Datalet.aspx?sIndex=2&idx=1
I can't get the map function to work, it keeps timing out.
Both of these are in Blacksburg, VA
Okay, the links don't work the second time. The Burdette Parcel can be found by property address: 490 Craig Creek (Road, Blacksburg, VA)
The Brush Mountain parcel doesn't have an address, put in the Parcel ID:?ÿ?ÿ016095
EDIT: I think the Burdette parcel is not the correct one, maybe she sold it.?ÿ I'm pretty sure the Brush Mountain Parcel is correct because the tax map no. is the same as the opinion.?ÿ It's a weird system, hard to search by tax map no.
Okay the Burdette parcel (now owned by another person) is Parcel ID:?ÿ?ÿ025083,?ÿ3212 LAUREL DR, BLACKSBURG VA 24060
I'm guessing Strider Road is the issue.?ÿ It looks like there is a physical road there which would at least put Burdette on inquiry notice, I would think.
On the other hand, Brush Mountain is a sophisticated property owner and should know the proper way to execute an access easement to their property. Presumably Burdette got somewhat blindsided by this and the Court tended towards her side because a dirt forest road is not a street into a subdivision development and the other reasons they give in the opinion.
Pretty messed up, but you can't convey an interest to a 3rd party generally.?ÿ The court didn't base its decision on that, but could tell it was an influence.?ÿ The release of the option doesn't make Brush Mountain a party to the conveyance of parcel B.?ÿ So attempt to grant an easement to Brush Mountain in a deed from Roberts/Harvey to Davis is a problem.?ÿ Especially when Davis is trying to grant the easement over property acquired from Roberts/Harvey in this transaction and over property (parcel A) Davis already owned.?ÿ An easement over just "A" or just "B" doesn't do anything.?ÿ But I agree that "subject to easements of record.." should not be enough to "create" an easement by making one search out "anything" that might have created one.?ÿ It's more of a statement that the grantor doesn't know of any (let alone grant any), but does not warrant that there aren't any.
They were not attempting to create the easement by the deed. They were attempting to create the easement by the plat.?ÿ This was not ideal because the plat is not in Brush Mountain's chain of title, but I've never seen an easement overturned because it was not in the beneficiaries chain of title.?ÿ The plat?ÿis in the the chain of title for both the burdened properties, which is what should matter.?ÿ
The key point in this case is "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. " This is different than many states.?ÿ
I don't think that's different than other states.?ÿ They said had the deed mentioned subject to easements on said plat, then that would have been enough for the plat to describe them.?ÿ They also said if it was a subdivision map all streets on it would be easements.?ÿ This is a narrow holding based on a number of facts they discussed that make it different than what you want to equate it to.?ÿ I have seen easements overturned because not in chain of title (the 3rd party problem).?ÿ But there is a split in thinking over this issue.?ÿ
So you want the map to create the easement, and court said a deed is not necessary. In this case lets throw out the deeds altogether and try to create the easement via the map.?ÿ Map is signed by 3 parties indicating creation of an easement across parcel A and parcel B to parcel C.?ÿ A is owned by Davis, B is owned by Roberts and Harvey Family, C is owned by Brush Mountain.?ÿ Problem: Davis can convey an easement from public road over A to B.?ÿ Roberts/Harvey can convey an easement to either Brush Mountain or Davis only across B to A or to Brush mountain.?ÿ Brush mountain can't convey anything but signs anyway.?ÿ So no easement from public road to Brush mountain.?ÿ Then Davis buys B so any easements have merged and a new map needed to convey a new easement, signed only by Davis (not sure why Brush mountain signed the map to begin with, their option to buy should have nothing to do with any easements created before/if they exercise the option).
Of course we know what was going on.?ÿ Brush mountain gives up option in exchange for easement to develop their property.?ÿ But they did it all wrong to extent that Burdette can't be expected to know the parcel they purchased was burdened by such an easement, especially of that scope.
Unspoken rule of property?ÿlaw: if you make it really, really vague then the courts might strike it down as a message that you should get professional help next time and not clog up their courtroom with BS.?ÿ We see this occasionally when a deed that is actually surveyable is struck down for vagueness.
They said all lots within a subdivision had a right to use easements shown on it. The problem is they did not say anyone else could use them.?ÿ
I really don't see how this is vague at all.?ÿ The two owners of the two servient parcels signed a document that clearly said they were granting an easement. That document is made a definitive part of the chain of title by the fact that it creates the boundaries of the servient parcels. In fact no one can ignore it, because the deeds don't contain meets and bounds, they only refer to the plat.
I now understand this decision is reasonable, because in Virginia it has been established that a plat is to be referred to only for metes and bounds. I missed the importance of that on my first reading and I was completely?ÿ flabbergasted by the decision.
My point was that not all states have established this, and in those states this decision is irreverent. In Alaska if a deed refers to a recorded plat, all the information on that plat is incorporated in the deed. The plat information is so integral that the usual way to eliminate an easement like the Brush Mountain easement in Alaska is?ÿ to replat the lot without the easement. Otherwise, the next deed that refers to the old plat could recreate the easement.?ÿ
This has been a good lesson for those of us who work in multiple states that we need to be aware of differences across state boundaries. Since there are more similarities than differences it is easy to be lulled into complacency and apply what we know in one state to another without research.?ÿ?ÿ
Brush Mountain cheaped out on paying a Lawyer to draft the correct document by having the Land Surveyor put that note on the Plat without really understanding how it could go wrong.?ÿ I guess if the carpenter is on-site and they need some plumbing done in the new house they just have the carpenter do it, like why not? No extra charge.
Adjacent state, almost the same name, but it's the only thing I think of when this thread comes back to the top
Basically what happened was the operative words above the signatures never mention the private easement which is mentioned as sort of an after thought in a note on another part of the map. Then the Deed into Burdette only mentions the Plat with respect to the land description and the "subject to" clause is just a general statement which doesn't create an easement and doesn't specifically mention the Plat.
Brush Mountain, presumably a sophisticated property owner which should know the correct way to do things (or has access to specialized professional advice), is asking the Court to burden Burdette (a homeowner) with an easement based on this and the Court says that is insufficient, it needs to be clear from the documents the parties intended to create the easement. The way this was done is not enough to cross the threshold to burden Burdette with the easement.
Burdette is the name of the fellow who orders the truckload of Coors in Smokey and the Bandit 🙂
Basically what happened was the operative words above the signatures never mention the private easement which is mentioned as sort of an after thought in a note on another part of the map. Then the Deed into Burdette only mentions the Plat with respect to the land description and the "subject to" clause is just a general statement which doesn't create an easement and doesn't specifically mention the Plat.
Brush Mountain, presumably a sophisticated property owner which should know the correct way to do things (or has access to specialized professional advice), is asking the Court to burden Burdette (a homeowner) with an easement based on this and the Court says that is insufficient, it needs to be clear from the documents the parties intended to create the easement. The way this was done is not enough to cross the threshold to burden Burdette with the easement.
Burdette is the name of the fellow who orders the truckload of Coors in Smokey and the Bandit 🙂
I think you are reading?ÿ to far between the lines. The decision was not based on the operative words above the signature. The plat contained clear language expressing the servient land owners intention to grant an easement and Brush Mountain exchanged "valuable consideration"for the easement. I believe this case would have been decided differently if courts in Virginia had not established that a reference to a plat is only a reference to the metes and bounds of the plat.
I am not sure why everyone keeps bringing up the "subject to" clause. Either the plat created the easement or it didn't. The "subject to"clause is put in warranty deeds to cover future liability. Its absence would not invalidate an existing easement.
Some states give just as much weight and importance to plats as to deeds. I would be interested to know how many states follow the Virginia idea that a plat does not carry the same weight as a deed.?ÿ
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A little different as this is much more detailed and contains declaratory language, this is what is required on a plat in Oregon to create an easement.