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  1. #1
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    Sep 2014
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    Default New Owner of Servient Tenement is Disputing My Easement Through His Property

    My question involves an easement in the state of: Texas

    I purchased an easement from the owners of land that ran along my land boarder. The purpose was for access to city water that was available on the other side of their property. Upon purchasing, signing and notarizing the easement (all parties) I began the process of clearing the land for burying the water line (all done with the servient estate's permission). The owner of the servient estate then sold the property WITHOUT DISCLOSING THE EASEMENT TO THE NEW PURCHASER (allegedly... ). In specific the new owner is saying that the T-47 affidavit provided during the sale of the land did NOT include any disclosure about the easement.

    I actually met the new owner face to face on the property after he had completed the purchase. I was out working on completing the water line install and he comes up and asks what I'm doing on his property

    I politely informed him that "I'm they guy with the utility easement" and I'd be completed with my work soon. He asked for my "proof" of easement. I happened to have the easement on Dropbox... so I emailed it to him from my phone while speaking with him. After that the conversation was cordial, he came out and looked at our work, chatted a bit, and wished us luck with the project. Later that day we even had some friendly emails back and forth about the work being done. He wrote in an email that it was ok if I didn't remove my tractor blade over night from his property. EVERYTHING SEEMED GOOD!

    THEN, after we finished ALL the work. About a week later we get a certified letter from his attorney stating that because the original owner didn't disclose the easement on the T-47, he considers the easement to be void and we are to remove any improvements and return the estate to how it was before we began work! But also not to go on the land, because that would be trespassing. (Not sure how I do both

    As a matter of pure coincidence, I happened to FILE the signed and notarized easement documents with the county ON THE SAME DAY THAT THE LAND WAS CLOSED ON BY THE NEW OWNER!!! A FEW HOURS AFTER CLOSING! This is an important fact largely because the new owner thinks it's "fishy" and therefore is ticked off because he thinks the previous owner and I colluded to deceive him about the easement. We did not. Pure coincidence. In fact, I had no intention of placing the easement on record with the county until the city refused to grant the water meter UNTIL I filed the record with the county.

    SOOOOOOO...
    The way I look at it. I have a legal easement. The previous owner may have broken the law by not disclosing, but what does that have anything to do with ME?
    Can I just ignore the letter? I may need to go do something on my water line (specifically, I'll need to turn the meter on once we finish our home build)... should I worry just because his attorney sent me a letter?

    BTW, he's going after damages from the people who sold him the land. Which is what I really think this is all about. I think he HAS to tell me that he believes the easement is void so as not to "imply" an easement exists by letting me use it unabated.

    Any thoughts? Can my easement be put into jeopardy given the above circumstances?

  2. #2
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    Nov 2013
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    Default Re: New Owner of Land (Servient Tenement) is Disputing My Easement on His Property

    If you recorded the easement then you have little to worry about. Your new neighbor can think what he likes. Maybe you should buy him a whole tuna if he likes fishy. But you are correct in that it has noting to do with you. It has to do with who he purchased the land from.

    I suggest you go talk to your neighbor and ask him what he wants. You need the easement to run your waterline and what harm is it causing him. Try to work it out before you have a history of adversarial relationship with your neighbor.

    What do you have in the way of an easement agreement with the neighbor before the property was sold? Was that agreement recorded? The T-47 has nothing to do with an easement agreement and is not the recording of an easement.

    I would flush the lawyer's letter.

  3. #3
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    The lawyer's point is specious. You can't invalidate a land claim just by claiming nobody told you about it.

    The problem you have is that since the easement wasn't filed until after the grantor was no longer the owner, it is INDEED sketchy. You were stupid for not recording it immediately. It's exactly for this reason the county wouldn't let you hook up without a proper recorded easement. Of course, the county had no way of knowing that the easement wasn't properly granted.

    Still the easement should be valid from the time it was granted. And yes, the buyer's recourse is with the seller, but that's not to mean they can't make your life miserable in the process.

  4. #4
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    Yes, it was indeed stupid to not file it IMMEDIATELY. Wish I had, would probably have prevented all of this.

    From what I read about easements in Texas, however, filing with the county is merely a formality. (Not that you are implying anything different).

    So, @flyingron, do u agree with @budwad? Flush the letter and ignore it? Or hire an attorney to write a response? I've already contacted my neighbor... He said "tell it to the attorney".

    - - - Updated - - -

    @budwad, I've got a signed & notarized legal contract dated and effective BEFORE the land changed hands to the new owner.

  5. #5
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    Quote Quoting flyingron
    View Post
    The lawyer's point is specious. You can't invalidate a land claim just by claiming nobody told you about it.
    Actually.... sometimes you can. Texas is a pure notice state, meaning,
    Quote Quoting Texas Property Code, Sec. 13.001. Validity of Unrecorded Instrument
    (a) A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.

    (b) The unrecorded instrument is binding on a party to the instrument, on the party's heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument.

    (c) This section does not apply to a financing statement, a security agreement filed as a financing statement, or a continuation statement filed for record under the Business & Commerce Code.
    With the closing occurring before the easement was recorded, there was no notice to the buyer of the unrecorded easement and the buyer has a basis to try to have it declared void.

    Trying to rescind the easement on that basis, though, presents some complications for the buyer. First, with the water line already in place, it's not necessarily the case that a court would order the line removed -- and often the facts would weigh against such a remedy. Second, if he is already suing the seller without including slarty in the lawsuit, it looks like he's seeking damages -- having the pipe removed and the land restored would undermine his claim for damages, and his allegations within any pending lawsuit may in fact be inconsistent with his demands to slarty or presuppose that an action to eject slarty would fail. If a lawsuit has in fact been filed I get a copy of the complaint to see exactly what is being alleged.

  6. #6
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    Sep 2014
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    @Mr. Knowitall, great insight. Thanks for bringing it to my attention.

    Any idea how TAMU's department of Real Estate came up with the following opinion? I already sent Dr. Fambrough an email asking.

    The written document creating an easement need not be recorded to be effective. However, to give constructive notice to subsequent purchasers as described in Section 13.002 of the Texas Property Code, easements normally are recorded.

    - http://recenter.tamu.edu/pdf/422.pdf

  7. #7
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    So at the time of the closing there was no recorded easement and the buyers claim they had no notice of the easement.

    What about this:

    A bona fide purchaser of a servient estate who acquires it without notice of an easement takes the estate free of the easement. Cambridge Shores Home Ass'n. v. Spring Valley Lodge Co., 422 S.W.2d 10 (Tex.Civ.App.Dallas 1967, no writ); Lesley v. City of Rule, 255 S.W.2d 312 (Tex.Civ. App.Eastland 1953, writ ref'd n. r. e.); Latimer v. Hess, 183 S.W.2d 996 (Tex.Civ.App. Texarkana 1944, writ ref'd); 21 Tex.Jur.2d Easements 35 at 163.
    Could this extinguish the easement?

  8. #8
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    SPOKE TOO SOON!

    The T-47 affidavit DOES include the expressed easement in detail!
    So, by my interpretation of the law (which is admittedly lacking...)...
    Because T-47 affidavits disclosed to the title company are both a form of disclosure to the buyer AND are promulgated by the Texas Department of Insurance, the fact that the T-47 included the easement before the buyer purchased the land BINDS HIM TO THE EASEMENT.

    Am I wrong?

  9. #9
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    You're probably correct, although the proverbial devil is in the details. I would worry about the status of the easement a lot more if they actually file a lawsuit that includes you, as opposed to thumping their chest or suing only the seller. It becomes extremely difficult for the seller to argue that the conveyance occurred without notice to him of the sale of an easement if, prior to closing, he has in his possession a sworn statement from the seller that specifically describes the easement.

  10. #10
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    Default Re: New Owner of Servient Tenement is Disputing My Easement Through His Property

    And it just keeps getting better!
    New revelation:

    Not only did I record the easement with the county BEFORE the subsequent purchaser recorded his warranty deed with the county, but I recorded the easement 4 HOURS BEFORE THE PROPERTY WAS CONVEYED! And 1 day before he completed closing!

    He/his-attorney basically lied in his letter about both the T-47 as well as the time of conveyance!

    - - - Updated - - -

    So....with these new Facts:
    - on "Day 1" Person "A" conveys a legal, expressed, documented easement TO Person "B"
    - on "Day 30" that easement has NOT be filed with the county
    - on "Day 31" at 1:55pm Person "B" files the easement with the county
    - ON THAT SAME "DAY 31", but at 5pm, Person "A" conveys the property with the easement to Person "C"
    - on "Day 40" Person "C" seeks to extinguish the easement citing that the easement was NOT disclosed to him prior to the conveyance of the property.

    Question:
    - Given no other facts about the case, assuming there is NO OTHER DISCLOSURE concerning the easement. Is the easement still valid? or is it void?

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