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  1. #1

    Question My Exceptions to Conveyance and Warranty Appear to Contradict Themselves

    My question involves real estate located in the State of: Texas

    I'm reviewing a general warranty deed between two associations. We'll label them (A) and (B). The property described is correct, the reservations listed show as "None". But the Exceptions to Conveyance and Warranty is where I'm lost. The first item states the Grantee does not assume payment of... and it's all the deed of trust documents. I get that. But there is a separate section under the exceptions header that states the following:
    "Validly existing easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded and validly existing instruments, other than conveyances of the surface fee estate, that affect the Property; and taxes for 2008, which Grantee assumes and agrees to pay, and subsequent assessments for that and prior years due to change in land usage, ownership, or both, the payment of which Grantee assumes, but not subsequent assessments for that and prior years due to change in the land usage, ownership, or both, the payment of which the Grantor assumes."
    There is a disagreement on who is responsible for paying the taxes after the closing date. All taxes prior to closing (including the prorated ones for that year) were paid by the original owner, association (A).
    Association (B) is claiming association (A) needs to pay half of the taxes for all the years since closing (2008).

    There is another issue between the associations that perhaps someone can help me with, also.
    I represent association (A) that owns lot 4-2 of block 1. The separate association (B) owns lot 4-1 of block 1.
    The original owner (association A) owned both lots, but he sold lot 4-1 to association (B).
    There is an easement agreement where association (B) is now the grantor and association (A) is the grantee.
    It states the grantor and grantee are subject to architectural guidelines and a common area maintenance charge, but there is no common area. Association (A) pays for their own property taxes, water consumption, electricity consumption, landscaping, maintenance/repair to parking lots, insurance, etc. on lot 4-2. Association (B) wants to charge Association (A) for half of the taxes, insurance, landscaping, water, electricity, parking lot, etc. on lot 4-1 because he thinks it's "common area". Association (A) reads this document to say all the businesses that make up association (A) pay for all those items mentioned above that are for lot 4-2. And vice versa. Basically there is common area inside each association, individually.
    The map of the area within the easement agreement has a bold line between lots 4-1 and 4-2.
    There is a separate clause in the easement agreement stating the grantor is solely responsible for the construction, maintenance, and repair of the grantors drives on the grantor's parcel, and same thing for the grantee. So the grantee, association (A), paid for a newly paved parking lot for the parking area on the grantee's parcel. The grantor, association (B) paid for his parking area on his parcel. EXCEPT now he wants to charge association (A) for half of it because the tenants and customers of association (A) have to drive on those driveways to get to their buildings.
    Association (A) has no other entrance point. And the map clearly shows that the entrance points are on association (B)'s parcel, even according the metes and bounds described in the easement agreement.
    So who pays taxes and who pays for the asphalt?

  2. #2
    Join Date
    Nov 2013
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    6,431

    Default Re: My Exceptions to Conveyance and Warranty Appear to Contradict Themselves

    Typically the grantor of an easement is the servient estate and grantee is the dominant estate. The grantor owns the land and the dominant estate gets to use the land. The grantor pays the taxes on the land. The dominant estate pays for improvements unless there is a grant that says otherwise.

    There is a separate clause in the easement agreement stating the grantor is solely responsible for the construction, maintenance, and repair of the grantors drives on the grantor's parcel, and same thing for the grantee.
    So it appears that you such a grant. Each estate is responsible for the construction, maintenance, and repair of the drives on their land.

    I can't say where association B gets his authority to charge A for half the construction of the drive or parking lot and the taxes etc. based on what you posted.

    It's time for you to consult a local land use attorney to have all the documents reviewed.

  3. #3

    Default Re: My Exceptions to Conveyance and Warranty Appear to Contradict Themselves

    The grantor, association (A) sold everything on lot 4-1 to the grantee, association (B). Association (A) owns nothing on lot 4-1 anymore. Association (B) owns lot 4-1 in its entirety.

  4. #4
    Join Date
    Nov 2013
    Posts
    6,431

    Default Re: My Exceptions to Conveyance and Warranty Appear to Contradict Themselves

    A sells 4-1 to B. As a matter of law, if B had an easement over the land that is now owned by B (formally owned by A), that easement is extinguished. An estate cannot be both servient and dominant at the same time. And without knowing what existing easements, rights-of-way, and prescriptive rights existed before A sold to B, it is impossible to know what rights survived the sale.

    The deed you are referring to says:

    "Validly existing easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded and validly existing instruments, other than conveyances of the surface fee estate, that affect the Property; and taxes for 2008, which Grantee assumes and agrees to pay, and subsequent assessments for that and prior years due to change in land usage, ownership, or both, the payment of which Grantee assumes, but not subsequent assessments for that and prior years due to change in the land usage, ownership, or both, the payment of which the Grantor assumes."
    It appears that the grantee is responsible for the taxes and assessments up to the time of the conveyance. But I don't understand but not subsequent assessments for that and prior years due to change in the land usage, ownership, or both, the payment of which the Grantor assumes That sounds contradictory to the prior statement.

    You posted who was responsible for construction, maintenance, and repair of the drives on their land but nothing on the granted uses of the land. You say there is now an easement where B is the grantor (servient) and A is the grantee (dominant). That each estate is responsible for construction, maintenance, and repair of the drives on their land taxes, etc... I still don't see where B can charge A for half the costs unless that is contained in a separate recorded document.

    The grantor, association (A) sold everything on lot 4-1 to the grantee, association (B). Association (A) owns nothing on lot 4-1 anymore. Association (B) owns lot 4-1 in its entirety.
    tenants and customers of association (A) have to drive on those driveways to get to their buildings.
    So it makes sense that when A sold 4-1 to B, A needed an easement over the land of B to access the business.

    You can post the granting language of that easement if you care to without paraphrasing to see if there is authority to charge A for half.

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