Virginia Surveyors Burdette v Brush Mountain Estates, LLC case

survey-ted · 2018-05-22T12:08:00Z

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 decision has put the real estate and title insurance communities on notice that the Court requires, for the creation of an enforceable easement, a deed or other "instrument of conveyance" with valid "words of conveyance."?ÿIn 1999, Kelly Burdette purchased 8 acres in Montgomery County, Virginia fromThomas and Margaret Davis. Brush Mountain Estates, LLC owned an adjacent parcel.?ÿBurdette's deed from the Davises contained, in the description of the property being conveyed, a reference to a plat. The deed also contained standard, boilerplate language that the conveyance was made "subject to all easements, reservations, restrictions and conditions of record affecting the property."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 COUNTYRobert M.D. Turk, Judge"In this appeal, we consider two questions: (1) whether theprovisions of Code ?? 55-2, requiring that estates in lands beconveyed by a deed or will, apply to the conveyance of aneasement; and (2) whether the circuit court erred in determiningthat two certain parcels of real property are encumbered with a50-foot easement for ingress, egress, and public utilities.Although we conclude that Code ?? 55-2 is inapplicable to theconveyance of easements because an easement is not an estate, wewill reverse the judgment of the circuit court. The deeds atissue, along with a plat incorporated therein for descriptivepurposes, do not contain operative words manifesting anintention to grant an easement."?ÿI 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

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dave-karoly

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Typically private easements are not created by maps in California because of the mess created of which this case is an example. Subdividers can dedicate easements to the public by map.

The correct method would've been to have Davis grant the easement to Roberts (describing both the easement and the dominant tract) over Parcel A. Then have Roberts grant Davis Parcel B reserving the easement described over Parcel B and describing the remaining dominant Tract (B came out of the Roberts tract).

Posted : May 26, 2018 12:41 pm

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Virginia Surveyors Burdette v Brush Mountain Estates, LLC case

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