Tale of Two Properties: Do I Have an Easement

I recently handled a closing that serves as an example of how important it is to have an attorney involved early in the real estate closing process. 

My client was purchasing a home and lot located across the street from the Intracoastal Waterway. Rumor was that there was also an easement for access to the waterway that crossed the property located directly across the street. 

The property my client was purchasing was bank-owned by way of foreclosure.  However, neither the deed into the prior owner, the foreclosed deed of trust nor the Trustee’s Deed to the bank contained reference to the easement.  [Read our article 5 Tips when considering buying a Real Estate Owned (REO) property"]

Was there an easement granting access to the waterway?  Would it convey to my client since it was not mentioned in the foreclosed deed of trust or the subsequent Trustee’s Deed to the bank? 

To make things more interesting, the property that the easement supposedly crossed was owned by a different bank through foreclosure, and the potential buyer of that tract was claiming that there was not an easement because – among other things – it was not included in the legal description of the foreclosed deed of trust. 

After a careful title search, I was able to determine that the prior owner of my client’s property had received the easement by way of a separate conveyance prior to the foreclosed deed of trust. 

The deed of easement contained some very important language in the granting clause:to run with and be appurtenant to. 

The fact that the easement was appurtenant to and ran with the land meant that it attached to the dominant or benefited tract (my client’s tract). The easement basically now belongs to the land, and subsequent conveyances also convey the easement as a part of the land, even though it is not referenced or specifically described. The fact that there was no reference in the foreclosed deed of trust or the subsequent Trustee’s Deed did not affect the validity of the easement, because it passed whenever the land was conveyed. 

My client was able to use this information, along with other more complex legal analysis, to establish that the easement did exist and he did in fact have the right to cross the burdened tract across the street to access the waterway. 

To make a long story short, my client was then able to negotiate with the buyer of the burdened tract to release the easement (sell it) in exchange for a large six-figure number! Had my client not gotten me involved early on in the process the result may have been quite different. 

This is obviously a unique situation and the negotiated results are not guaranteed or typical, but as you can see, there is great value to having an attorney involved in every real estate transaction.

Published by J. Chris Huff on December 21, 2015