How NOT to Create An Easement - Doctrine of Merger and the Surveyor - Part II
At recent convention seminars in several states, the doctrine of merger has been one of the most contentious issues discussed. In particular, heated debates frequently arise over the necessity for the creation of a new easement after the original right was extinguished by the doctrine of merger. This is a disturbing concept for many—it seems counterintuitive that an easement by express grant that is clearly described in a recorded deed could be questionable when the dominant and servient estate are presently under separate ownership.
This article amplifies on certain principles mentioned only briefly in an earlier web post. While the previous article was concerned primarily with the circumstances where an existing easement could be extinguished by the doctrine of merger, this one focuses on the difficulties that can arise after the merged estates again are separated.
Appurtenant easements generally require the existence of a dominant and a servient tract. As a result, when both tracts come under single ownership characterized by true unity of title, the easement is immediately extinguished by operation of law. In other words, a party “cannot have an easement in its own estate in fee.” See Cheever v. Graves: 32 Mass. App. Ct. 601 (1992).
The Massachusetts decision Luippold v. DAG Real Estate: 18 LCR 315 (2010) provides an interesting illustration of the care that must be exercised when re-subdividing dominant and servient parcels that were previously associated with an easement prior to merger. In this example, there was no question that an easement created by express grant in a 1993 deed had been extinguished. The court upheld the doctrine of merger, but the principle was not applied in this instance because the owner of both tracts had filed documents stating his clear intent to merge both lots preparatory to a re-subdivision. The court concluded that the documents merging the lots extinguished the original easement.
The court concluded that the 1993 easement could not be revived by a general reference to existing easements because it no longer existed. The judge observes: “Once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. For the easement to arise again, it must be created anew by express grant, by reservation, or by implication.” This broadly recognized concept has defeated attempts in numerous jurisdictions to “revive” easements that were previously extinguished. General statements in the “boiler-plate” portion of a deed that recognize all existing easements will not serve to bring a moribund easement to life again.
The Massachusetts court also emphasizes that an easement depicted on an ANR plan could not be considered legitimate because a single parcel cannot have an easement over itself. While the court later awarded an easement based on the ANR plan, this portion of the ruling describes the creation of a new easement by implication, rather than the recognition of an existing easement.
Surveyors—and the attorneys with whom they work—should be sure that documents include express language sufficient to create a new easement in circumstances analogous to those described above. If desired, the new easement may be created in the same location and with the same characteristics as existed prior to the merger of tracts. A specific reference to a previously recorded easement description may be combined with appropriate language to create a new easement at the same location as the previous servitude. However, courts consistently require phrasing indicating the intent to create a new easement.
These principles are affirmed by the Washington court in Radovich v. Nuzhat: 16 P.3d 687 (2001). While this ruling provides a slightly different perspective on the doctrine of merger, this court clearly supports the basic principles discussed above. This decision notes that: “the courts will not compel a merger of estates where the party in whom the two interests are vested does not intend such a merger to take place, or where it would be inimical to the interest of the party in whom the several estates have united, nor will they recognize a claim of merger where to do so would prejudice the rights of innocent third persons.”
In this opinion, the court determined that a new easement had been re-created by later conveyances after the merged properties were re-divided. However, Judge Baker emphasized that this outcome was not the result of the re-creation of the original parcels: “When an easement has been extinguished by unity, the easement does not come into existence again merely by severance of the united estates… Upon severance, a new easement authorizing a use corresponding to the use authorized by the extinguished easement may arise. If it does arise, however, it does so because it was newly created at the time of the severance. Such a new creation may result, as in other cases of severance, from an express stipulation in the conveyance by which the severance is made or from the implications of the circumstances of the severance.” This opinion reinforces the possibility of an easement arising from implication or necessity when merged tracts are re-divided. An implied easement may provide a limited relief in some cases, but is hardly an ideal solution.
In Pergament v. Loring Properties: 599 N.W.2d 146 (1999), the Minnesota court affirms the principles already discussed but also considers the effect of the “mortgage exception” recognized by many states. The background for this case describes an apartment building next door to an office building and its associated parking lot. In order to obtain financing for purchase of the apartment, the realtor was required by local ordinance to obtain a parking easement for a portion of the office parking lot adjacent to the apartment. Later conveyances united the title of the apartment and office tracts. When the two tracts were eventually re-conveyed to separate owners, the new proprietor of the apartment claimed a parking easement on the parking lot of the office building.
While the lower court upheld the easement for parking based on the mortgage exception, the appeals court overruled the lower court decision. In its opening statement, the court emphasizes: “We conclude that at the time fee title to the dominant estate is united with fee title to the servient estate, the easement is extinguished with this exception: a mortgagee of the dominant estate will be entitled to the benefit of the easement should the mortgagee's interest become possessory.”
The original parking easement was apparently created only to fulfill requirements necessary for securing the loan for the original purchase of the apartment building. This court observes that at the time of the re-division of the two lots, the easement was not mentioned in the deed, but only appeared in the title insurance policy. The judge concluded that the mortgage exception was only intended to “protect the mortgagee of the dominant estate from losing the value” as might occur if an easement were extinguished in this manner. Ultimately, the court ruled that the parking easement did not revive at the time of the subsequent division of the two tracts. “Once extinguished, an easement is not revived or reinstated when referred to in a subsequent conveyance… …reference to an extinguished easement does not create or revive an easement, it presupposes an existing easement.” Pergament v. Loring also points out that a recital of the easement in a contract for sale will not serve to re-create the previous easement.
In the New Hampshire ruling Appletree Mall v. Ravenna Investment: 33 A.3d 1097 (2011), the court considers the sequence of conveyance and identity of the grantee in the creation of an easement. The first deeded easement discussed in this ruling was recorded in 1976 but was admitted by all parties to be void from its inception because both dominant and servient tracts were conveyed to the same grantee. Later deeds referenced the 1976 description with the following language: “Together with the benefit of and subject to all rights, easements and restrictions of record including but not limited to the following: Easements, restrictions and covenants set forth in a deed from James A. Matarozzo, et al. to [Shaw's] recorded in Rockingham County Registry of Deeds at Volume 2266, page 441 [the 1976 deed]…” This apparent acknowledgement of the previously existing easement was recorded in 1984. The language used in this document was considered by the court to be of a precautionary nature and was not sufficient to create an easement where none existed.
Appletree emphasizes that a deed including the phrase “subject to all easements” is interpreted as subject only to all valid easements. Since the 1976 easement was void, the later reference was considered ineffective to create an easement where none had ever existed. Of equal importance is the conclusion that an easement is not “revived” by the severance of two parcels in a situation where a legitimate easement was previously extinguished by the doctrine of merger. “The mere reference to an extinguished easement in a deed is insufficient, as a matter of law, to revive the easement.” Ultimately, this court ruled that the intent of the parties as expressed in the 1984 deed was clear. No words of conveyance or creation were used and the language simply served to alert the parties of any existing easements.
It was also argued that the mistaken belief in the validity of the 1976 easement was sufficient to bridge the gap in this instance. However, the court rejects this hypothesis and concludes that intent to create a new easement must be clearly expressed by the parties.
Capital Candy v. Savard: 369 A.2d 1363 (1976) is a Vermont ruling quoted by several other state courts. It provides an excellent summary of the strict requirements generally applied: “This right-of-way, once it had been extinguished by the merger of the two parcels of land, could not be re-created by the mere subsequent separation of the parcels. In order for a new right-of-way to exist over the defendant's property, it must be shown that such an easement was re-created by a proper new grant or reservation.” In this instance, two subsequent warranty deeds that purported to transfer the easement in question were not sufficient to convince the court of its legitimacy. Since the original easement was considered to be “non-existent,” the subsequent conveyances were considered void with regards to any transfer of the easement.
While an easement is not automatically revived at the time of a re-subdivision of two tracts previously merged under single ownership, surrounding circumstances may justify recognition of an easement implied by prior use or by necessity. Breliant v. Preferred Equities Corp.: 112 Nev. 663 (1996) discusses this possibility, although the court ultimately rejected the arguments raised for an easement by necessity. This approach is clearly not in the best interests of the landowners because there is no certainty that the court will award an implied easement based on the available evidence. Numerous decisions nationwide emphasize that the strict standards for implied easements are more involved than a simple recognition of the need for a solution.
The strict standards applied by the courts may seem unreasonable at first glance, but the opinions cited above are a representative example of decisions nationwide. These illustrations underline the critical importance of a proper understanding of the legal meaning of the words and phrases commonly used in conveyances and their likely effect on property rights. While the surveyor is unlikely to be called on to testify as to the legitimacy of an easement, it requires little effort to imagine the possible negative impact on the professional who represents a void easement as a legitimate access on a boundary survey.