Title Tips by Tute
Volume 13, Number 3
Tute recently was invited; well, strongly encouraged; well, instructed by management to examine a title in the County of Nostalgia, a jurisdiction not visited in many years. While there were the inevitable changes (computer terminals being the most obvious), the process of examining the title was remarkably similar to what it was many moons ago, when your author was still a young pup. Even more remarkable, and this may be a sign that the undersigned is actually starting to mature (isn’t that a much better phrase than “getting old”?), some of the characters that inhabited the deed room all those years ago are still resident and still going strong. Has the FDA investigated deed room dust for its potentially lifespan expanding properties?
While quietly minding the corporate store, the following exchange was overheard from the next row. “Why would I examine title to an easement that isn’t in the deed?” questioned a young title examiner of the grizzled veteran apparently overseeing the training of this novice.
“To begin with,” rang out a voice that I remembered through the years, although age had not been kind to the face of Angus MacDougal, “Do you think your buyer is going to want to get to their property?”
“Of course they are,” came the response, “and they’ll go right up this street shown on this survey the client sent us.”
“That street, as you call it, has stripes in it that strangely resemble parking lot spaces,” replied Angus, “and those two lines really close together running the whole length of that boundary, that’s a curb. There is no way I am going to buy a wheel alignment every time I want to buy a cup of coffee, or whatever it is they are going to sell there.”
I remember that if Angus started talking about frequenting a business on a title he was examining, the talk rapidly degenerated into something that resembled a seminar. Not having written this issue’s column, I confess that I quit minding the corporate store and started taking notes.
“What are the two kinds of easements,” asked Angus.
“Access and utility,” responded the trainee.
I giggled. Angus glared. I pretended to continue writing my property description.
“You’re more right than you know, but I suspect you don’t know why you’re almost right.” responded Angus. “The answer we learned in law school was ‘appurtenant’ and ‘in gross.’ An appurtenant easement is one the benefits a specific property, such as your answer ‘access.’ An easement in gross does not benefit a particular property, and the classic example is the easement acquired by the light and power, water, telephone or gas companies.”
“Now that we’ve got categories of easements, how are they created?”
“With deeds, you silly man,” responded the trainee, “which is where we started. There is no easement in this deed, so there is nothing for me to search.”
“Just because your sainted mother was my sister’s best friend since she was two years old, and I’ve known you since you were only a myopic gaze in my philosopher brother’s, and your father’s, eye, gives you no call to call me ‘silly’” retorted Angus. “That is, indeed, my most favored niece whose standing is rapidly falling, the most common way of creating and conveying easements, but there are others. A court order is a writing, but not a deed, and it can memorialize several types of easements that never show up in the land records unless you know what to look for.”
“You don’t have any other nieces to dislodge me from ‘most favored’ status, but, just to show I was paying attention when you told that awful story about the pickle factory, what is required to prove a prescription easement?”
“Prescriptive,” noted Angus, undeterred by the malapropism. “Those easements are ones that are presumed to have been granted, but the documentation has been lost. They are presumed to exist because of long usage. That could be just plain use without permission for so long that the courts treat it like adverse possession, and it has the same elements of ‘adverse, uninterrupted and continuous’ use. The easement may have come into use because there was no other way to reach the property once the ownership was separated from the parent tract – that’s an easement of necessity. Need doesn’t let you cross the property of a third party, only the property from which your parcel is a portion. One reason the courts will imply the easement is because most reasonable purchasers will require access to their property, and most reasonable sellers will agree to it, since otherwise, there would be no sale. That’s the principal that underlies easements by implication, that the property is conveyed with what is necessary for its enjoyment. A type of easement that rarely is evident in the land records is one created by estoppel – that kind arises from representations or statements made by the seller. When those go to court, the claimant is seeking to prove a promise that was made but not kept, in essence, breach of contract.”
“But you don’t have that here; this is a lot more straightforward, in a slightly roundabout way.”
“Would you like to explain that, in non-Euclidian terms?”
“It’s as plain as the freckles on your nose.”
“I don’t have freckles.”
“You may have convinced yourself of that, but the rest of the world may disagree. Now may I continue, or should I go over to the five and dime for a cup of coffee, and leave you to find it for yourself?”
“Thought so. Let me see your adverse list . . . uh, huh, there, what’s in that document between Sleazy Developer and Anchor Tenant?”
“It’s called a reciprocal operating agreement. It’s full of stuff about what kind of stores can be here and who has the clear the snow off the parking lot. It’s awfully long.”
“I see you labeled it as restrictions . . . read it again . . . your cousin Sleazy usually buries the easements in Article 12, but sometimes the tenant rearranges the sequence. You’ll find that each and every tenant and purchaser has certain rights to use the travel lanes in the center for access by them and their customers to their parcels, without the necessity for jumping curbs, and those easements are said to be appurtenances running with the land.”
“While I would like to agree with your ‘if they don’t describe, I don’t have to search’ approach, if the easement is an appurtenance, it passes with the land anyway. Lawyers less punctilious than your highly esteemed . . . I heard that snort young lady . . . than your highly esteemed uncle benefited from that rule under the common law, and the General Assembly passed a statute reaffirming that that portion of the common law remains in effect, § 55-50, if memory serves.”
“Now, if we’re finished, I think I remember that eavesdropper in the corner as a . . . “
This is my column, and I don’t have to repeat those absolutely untrue and exaggerated depictions of my character flaws . . . well, exaggerated anyway. I think I need to get back to work.