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Can Sale of the Servient Tract Without Notice Extinguish a Prescriptive Easement?

Prescriptive easements can be problematic, both in their creation and their obliteration. One confusing problem concerns the applicability of recording statutes found in many jurisdictions on existing prescriptive easements. Since they are not generally based on recorded documents, it is necessary to consider prescriptive easements separately from those created by express or implied grant or reservation. Modern decisions in West Virginia and Maryland have raised the specter of applying a claim of “bona fide purchaser status” to the servient estate as a method of extinguishing a prescriptive easement. Determining whether the purchaser of the servient tract had notice (actual or constructive) of the easement at the time of purchase of critical importance.

A detailed analysis of this problem is found in Herbert Thorndyke Tiffany, The Law of Real Property (3rd Edition by Basil Jones, Volume 3, pg. 399) Chicago, Callaghan & Co., 1939). This treatise first considers the effect of actual or constructive notice on record easements (or on easements implied from recorded documents): In the case of an easement created by express grant, the right of the innocent purchaser for value of the servient tenement to hold the land free from the burden of the easement is obviously by reason of the recording laws, which invalidate an unrecorded conveyance as against a purchaser without notice, and the same is true of an easement created by “implied grant” so called, which is properly, as before explained, an express grant extended by construction to include an easement appurtenant to the land conveyed.

A separate standard is generally applied in analogous situations involving prescriptive easements: In the case of prescriptive easement, however, the recording acts, as ordinarily phrased, cannot well apply to protect an innocent purchaser, since they have to do with priorities as between instruments affecting land, while if the easement is prescriptive, the question is one of priority as between a claim under an instrument and a claim not under an instrument. In one state there are decisions to the effect that a purchaser of land takes it subject to a prescriptive easement thereon, even though he has no notice, actual or constructive. There on the other hand occasional decisions that the purchaser in such case takes free from the easement, the courts ignoring the consideration that the doctrine of notice, in this connection, is based primarily upon the recording acts. Observe that, circa 1939, two separate lines of reasoning were already evident. Since that date, it appears that these divergent views have continued to bedevil the state courts.

This overgrown road was a major public road over a century ago.


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