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  1. #1
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    Jul 2009
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    Default Re: Definition of "Grantor" in Subsequent Sales

    Thanks for all the input. I actually decided to spend some money with an experienced real estate lawyer, and here's the legal opinion in Georgia:

    Easements granted survive any change of ownership of the property, unless extinguished. So, in my case, the original owner still has the easement, along with the second owner, along with any subsequent owners if the language remains in the legal description of the property and is not extinguished by a quit claim deed from each (or is abandoned [not used] for some undefined significant amount of time, like 20 yrs).

    It just doesn't seem right that people who were not a party to my transaction have rights to my land that I did not explicitly grant, but that's the way it is.

    Thanks for all of your help.

  2. #2
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    Default Re: Definition of "Grantor" in Subsequent Sales

    You granted the use when you purchased the land subject to the easement. If you were not aware of the easement, shame on you for failing to do your due diligence and investigating any such encumbrances or encroachments onto property you intend to purchase.


    btw; what you repeated sounds an awful lot like what I told you.

    whoops, I didn't tell you this part though:

    if the language remains in the legal description of the property
    because it isn't true. An easement will continue until such time it is extinguished. If it is not included in a subsequent deed, that does not void the original grant. You take the property subject to all encroachments and documents of public record and an easement, when an actual easement, is recorded in the public records.

    simply leaving it out of a subsequent deed will not extinguish the easement.

    time for a refund from the attorney.

  3. #3
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    Default Re: Definition of "Grantor" in Subsequent Sales

    Yes, jk, your answers were similar, for which I thanked you.

    What I wrote is completely true. My point in leaving the language out of subsequent deeds was not to extinguish the easement, but simply not adding any more grantees. If the language remains, another grantee (the seller) is added each time the property is sold. All previous grantees would remain until extinguished.

  4. #4
    Join Date
    Oct 2007
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    Default Re: Definition of "Grantor" in Subsequent Sales

    simply leaving it out of a subsequent deed will not extinguish the easement.
    and that is because the easement is an appurtenance to the real property, and passes with it when conveyed. It is conveyed in the same manner as the property it is appurtenant to whether it is mentioned or not.

    Only easements in gross attach to persons, and are not usually transferable.

    I am unaware of any concept which would expand the ownership of an appurtenant easement each time the dominant tenancy is transferred.

  5. #5
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    Default Re: Definition of "Grantor" in Subsequent Sales

    Quote Quoting drmikec
    View Post
    Yes, jk, your answers were similar, for which I thanked you.

    What I wrote is completely true. My point in leaving the language out of subsequent deeds was not to extinguish the easement, but simply not adding any more grantees. If the language remains, another grantee (the seller) is added each time the property is sold. All previous grantees would remain until extinguished.
    no.

    you are not adding grantees nor grantors. The easement is already in existence so, as a seller, you are not granting anything to anybody concerning the current easement. It is attached to the property and you do not have the right to alter such an attachment unilaterally.



    How it is often worded is:

    property is subject to easement(s) .....

    and at this point, the easement(s) can either be listed specifically, by reference to a previous deed, or simply use the term; of public record.

    or a several other methods of giving notice although it is not required at all. One reason being is that when you deed a property to another, you can only deed whatever rights you have to that property. Since there is an easement limiting the current owners rights to use of the easement, that is all you can convey as well. It would be impossible for you to grant an interest greater than what you possess.

    this is one reason a title search is a great idea. It will uncover such attachments that may have not been mentioned in the most recent deeds.

    the only way you would be a grantor, is if you included something different that what the original easement covered. Other than that, you are simply an assignee reassigning your interests in the property.

    So, in my case, the original owner still has the easement, along with the second owner, along with any subsequent owners if the language remains in the legal description of the property and is not extinguished by a quit claim deed from each (or is abandoned [not used] for some undefined significant amount of time, like 20 yrs).
    No. Only the current owner has rights to the easement. Unless a subsequent seller reserved his rights to the easement, when he transfers title, he loses any rights to the easement. This is what the grantor did.

    I don't know where you are seeing a need for QC deed to seperately transfer the rights to the easement. It is all taken care of through the one deed that is used to transfer the property.

    and as far as the easement being extinguished by abandonment; that is a basis to seek the termination of the easement but a court is the only entity that has the right to terminated the easement for that reason. Until such time the servient tenant sued to extinguish the easement, and is granted his action, the easement is always there.

  6. #6
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    Default Re: Definition of "Grantor" in Subsequent Sales

    I guess I just don't follow the logic; please excuse my confusion. I really appreciate your patience.

    Quote Quoting jk
    View Post
    No. Only the current owner has rights to the easement. Unless a subsequent seller reserved his rights to the easement, when he transfers title, he loses any rights to the easement. This is what the grantor did.
    You said earlier that only the original owner (first "Grantor) has rights to the easement, which he granted to himself.

    Quote Quoting jk
    View Post
    what is sounds like is one person owned both lots at one time, or they may have even been 1 lot split into 2 lots. That person was actually both the grantor and the grantee. The words " reserve for myself etc." would indicate he owned that lot and when he sold it, he created the easement so he would be able to access the lot he retained.
    I understand that, even though I don't like it, and this agrees with what the lawyer told me. Now you say only the current owner has rights to the easement??? Just to refresh the thread, here is the original language:

    Quote Quoting drmikec
    View Post
    "THIS CONVEYANCE IS SUBJECT TO, AND GRANTOR HEREBY RESERVES FOR HIMSELF, HIS HEIRS AND ASSIGNS, A 15-FOOT EASEMENT FOR INGRESS AND EGRESS ACROSS LOT ##, AS SHOWN ON THE ABOVE-REFERENCE PLAT."

    Let me present the situation using names. Adam acquired the property via a quit claim deed from his mother, divided it into lots, and placed it on the market.

    Bob bought the lot in question, with the above easement in the legal description. This is the first time the easement has appeared in the legal description.

    Bob sold the lot to Charlie, with the language in the legal description on the deed unchanged, and Charlie currently owns the property. Charlie's lawyer said that Adam still has rights to the easement, and so does Bob since the language remained when Bob sold it (or because he is one of Adam's "assigns", it doesn't matter). Charlie doesn't care about Bob, but Adam is trying to be a big problem. I fear Adam has rights to the easement, Bob may or may not, and there's not much Charlie can do about it. Do you agree?

    Quote Quoting jk
    View Post
    I don't know where you are seeing a need for QC deed to seperately transfer the rights to the easement. It is all taken care of through the one deed that is used to transfer the property.

    The QC deed was to extinguish the easement without transferring the property.

    Thanks so much for your help, jk. I would be interested in others' opinions, also.

  7. #7
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    Mar 2009
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    Default Re: Definition of "Grantor" in Subsequent Sales

    I do not think Adam or Bob have an easement after they sell the property; only Charlie. The assumed intent of the easement was for use of the current parcel owner. Unless the easement language specifically reserves the right after the property is sold- some have- then it only exists for the owner in title.

    Contract law is pretty language specific. If the language is vague or ambiguous, the author of the contract is generally wrong.

    BTW...of course the other guys attorney will tell you what they did. I bet if you took the contract into court a judge may say something different.

    Tip: Get your own attorney.

  8. #8
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    Default Re: Definition of "Grantor" in Subsequent Sales

    Well, mudpie, that was how I read it, also, since there was no clause for the easement to survive transfer of the property. Unfortunately, it was my own attorney that told me that Adam still had access to the easement . . .

  9. #9
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    Default Re: Definition of "Grantor" in Subsequent Sales

    =drmikec;336951][FONT="Tahoma"][COLOR="Navy"]

    You said earlier that only the original owner (first "Grantor) has rights to the easement, which he granted to himself.
    at that moment, he is the only one with rights to the easement but due to the "assigns" term in the easement grant, whomever would subsequently gain title to the dominant tenement would also inherit the easement as well.

    I understand that, even though I don't like it, and this agrees with what the lawyer told me. Now you say only the current owner has rights to the easement??? Just to refresh the thread, here is the original language:
    Only the title holder has rights as the owner of the dominant tenant. Once that person would relinquish the title to a subsequent purchaser, their rights (as the individual) would cease as the new title holder gained the rights to the easement.


    Let me present the situation using names. Adam acquired the property via a quit claim deed from his mother, divided it into lots, and placed it on the market.

    Bob bought the lot in question, with the above easement in the legal description. This is the first time the easement has appeared in the legal description.

    Bob sold the lot to Charlie, with the language in the legal description on the deed unchanged, and Charlie currently owns the property. Charlie's lawyer said that Adam still has rights to the easement, and so does Bob since the language remained when Bob sold it (or because he is one of Adam's "assigns", it doesn't matter). Charlie doesn't care about Bob, but Adam is trying to be a big problem. I fear Adam has rights to the easement, Bob may or may not, and there's not much Charlie can do about it. Do you agree?
    let me temper the info given just a bit up to now.

    In the extreme, Adam might be able to claim his rights to the easement continued even after he transfered title of the dominant tenement. In a scenario where Adam owned property even further up the line where he would still need this easement and presumably granted himself an easement across the next lot when he sold it so he could still have access to his property, he would most likely be able to argue the easement was an easement in gross as well as an easement appurtenant to the several lots in play now.

    Since Adam has no need or use for the easement (in your current situation) the defenses argument would be that Adam had no use for the easement and in fact would be trespassing upon the lot beyond the easement on your lot so the intent of the easement could not have possibly been meant to be an easement in gross (to himself) or an easement appurtenant to the 3rd lot back since there is not a 3rd lot back.

    One way I could see an easement being intended as an easement in gross would be where Adam's lot is on a lake and he intended for himself to be able to have continued access to the lake once he sold both of the lots involved.

    [FONT="Tahoma"][COLOR="Navy"]
    The QC deed was to extinguish the easement without transferring the property.
    I understand what you are doing and why but if it is not a situation as I described above, there would be no need since Adam would have no use for the easement.

    So, tell me it is not one of the situations posted above with a 3rd lot back or a waterfront that Adam wanted to maintain access to.


    One other thing to think about here:

    in some states it is illegal to sell a landlocked parcel. If the easement is the only access to the second parcel back, you may not be able to ever extinguish the easement unless you would purchase both lots and actually combine them into one parcel. (since leaving them as two parcels and extinguishing the easement would make the second lot back a landlocked parcel regardless who owns it and as such, may be illegal)

    One thing contrary to what mudpie stated is: in an easement situation, the original grantors intent is often the determining factor. So, if there is ambiguity, the grantors intent may be the deciding factor.

    and I still disagree with your belief there is no transfer of easement with the sale of the lot. Since there is the term "assigns" included in the grant, anybody Adam sells the lot to would be an "assign" (Adam is assigning all of his rights and interest in the property to the buyer) As such the rights to the use of the easement across your lot would transfer with the sale.

  10. #10
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    Default Re: Definition of "Grantor" in Subsequent Sales

    Let me remind you that this whole thread is my attempt to gain leverage on Adam in order for him to be reasonable.
    Quote Quoting mudpie
    View Post
    Is Adam continuing to use the ROW?
    Quote Quoting jk
    View Post
    So, tell me it is not one of the situations posted above with a 3rd lot back or a waterfront that Adam wanted to maintain access to.
    Ahh, but there's the rub . . . Adam still owns a lot adjacent to Charlie for which the easement is the sole ingress/egress. Obviously, I am Charlie.

    He has leased that lot to a recreational club (of which I am a member and with whom I have no issue). The 25 year lease expires next year and he has chosen not to lease it again. He has offered to sell it to the club at approximately 200% of its appraised value, otherwise he has threatened to put multifamily housing on it (rezoning required but not likely to occur) or some other use which I fear would threaten my property value.

    I am willing to buy the lot at appraised value, but I won't approach him until I know what leverage, if any, I have over this easement situation. He is attempting a form of extortion (it seems) by threatening to act to decrease my property value unless I pay more than the lot is worth.

    Quote Quoting jk
    View Post
    One other thing to think about here:

    in some states it is illegal to sell a landlocked parcel. If the easement is the only access to the second parcel back, you may not be able to ever extinguish the easement unless you would purchase both lots and actually combine them into one parcel. (since leaving them as two parcels and extinguishing the easement would make the second lot back a landlocked parcel regardless who owns it and as such, may be illegal)

    One thing contrary to what mudpie stated is: in an easement situation, the original grantors intent is often the determining factor. So, if there is ambiguity, the grantors intent may be the deciding factor.
    jk, you may be on to something here. I'll stipulate that if he didn't have the easement, he would be landlocked, and so the easement would probably be upheld.

    But what was his intent? Do you think the current use of the property was implied, since that is the only use this landlocked lot has ever served? In other words, if he significantly changed the use of the lot, the easement could be extinguished? This would force him to continue to use the lot in a similar fashion, or sell it to me (or the recreation club) at a reasonable rate.

    Does it sound like I'm grasping at straws here? I am! Thank you all so much for your interest, time and experience.

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