EASEMENTS AND RIGHTS OF WAY ALL YOU WILL EVER CARE TO KNOW AND MORE LAW SCHOOL FOR REALTORS 101

Presented by Jonathan D. Weidman, Esq.

COURSE OUTLINE

1. The Fundamentals of Real Estate Law . The Estate in fee simple. Granting and conveyancing the Estate. ( 45 mins)

2. Understanding Easement and Rights of Way -Easement case #1 and #2 . (60 mins)

3. Easements continued. The “Jones easement”, Cornish NH – actual easement problem solved, deal closed and insured– description, scope and use of the easement case #3 (60 mins)

4. Why are easements important to me me in my practice as a real estate professional? ( 15 mins)

 

1) FOUNDATIONS OF REAL ESTATE LAW

FROM ENGLISH LAW- MIDDLE AGESKINGS AND KNIGHTS IN SHING ARMOUR AND SERFS

The estate in fee simple absolute WHAT is it? Why is it important to us

FOUNDATIONS (CONT.)

2) WHAT IS THE FEE SIMPLE ESTATE? It forms the foundation for the

GRANT? By various schemes of limiting,

encumbering, splitting and dividing and restricting it, we form the foundation of every real estate transaction that we do.

WHAT DO YOU MEAN? WHO CARES ABOUT THIS OLD STUFF( FEE SIMPLE CONTINUED)New Hampshire conveyancing law:RSA 477:24 Unnecessary Words; Construction of Certain Words. – The

word "grant'' in a conveyance of real estate or any interest therein shall be a sufficient word of conveyance without the use of the words "give, bargain, sell, alien, enfeoff, convey and confirm'' or the words "remise, release and forever quitclaim.'' No covenant shall be implied from the use of the word "grant.'' In a conveyance or reservation of real estate, the term "heirs,'' "assigns'' or other technical words of inheritance or succession shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an interest in fee simple unless a different intention clearly appears in the deed.

 

3) FEE SIMPLE ESTATE DEFINTION ( WIKIPEDIA) fee simple is the estate in land that a person has when the lands are

given to him and his heirs absolutely, without any end or limit put to his estate. Land held in fee simple can be conveyed to whomsoever its owner pleases.

History-The word "fee" is derived from fief, meaning a feudal landholding.

Feudal land tenures existed in several varieties, most of which involved the tenant having to supply some service to his overlord, such Gas knight-service (military service). If the tenant's overlord was the king, then this might require providing many different services, such as providing horses in time of war or acting as the king's ceremonial butler. These fiefs gave rise to a complex relationship between landlord and tenant, involving duties on both sides. For example, in return for receiving his tenant's fealty or homage, the overlord had a duty to protect his tenant. When feudal land tenure was abolished all fiefs became "simple", without conditions attached to the tenancy.

TODAY FEE SIMPLE IS ASSUMED AS THE DEFAULT GRANT

NO SPECIAL LANGUAGE IS REQUIRED TO GRANT THE FEE SIMPLE ESTATE

GRANTS ARE EVIDENCED BY WRITTEN INSTRUMENTS CALLED DEEDS WHICH ARE RECORDED IN TOWN ( VERMONT) OR COUNTY RECORDING OFFICES VIA STATUTE1) WARRANT DEED (WARRANTY COVENANTS)2) QUITCLAIM COVENANTS( QUITCLAIM COVENANTS)3)FIDUCIARY DEED ( SAME COVENANTS AS WARRANTY VIA STATUTE)4) FORECLOSURE DEED( SAME AS QUITCLAIMS)

MIDDLE AGES AND OLD DAYS

- DEEDS HAD TO HAVE FORMALITIES LIKE SEALS DONE WITH WAX TO REALLY EVIDENCE THE TRANSFER- ACTUAL DEEDS WERE DOCUMENTS THAT EVIDENCED ACTUAL TRANSFER AND CLOSINGS WERE CEREMONIOUS EVENTS THE COMMEMORATED THE ACTUAL LAND TRANSFER

WARRANTY DEED477:27 STATUTORY FORM OF WARRANTY DEEDA DEED IN SUBSTANCE FOLLOWING THE FORM APPENDED TO THIS SECTION SHALL, WHEN DULY EXECUTED AND DELIVERED, HAVE THE FORCE AND EFFECT OF A DEED IN FEE SIMPLE TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, TO THEIR OWN USE, WITH COVENANT ON THE PART OF THE GRANTOR, FOR HIMSELF OR HERSELF, HEIRS, EXECUTORS AND ADMINISTRATORS, THAT, AT THE TIME OF THE DELIVERY OF SUCH DEED, THE GRANTOR WAS LAWFULLY SEIZED IN FEE SIMPLE OF THE GRANTED PREMISES, THAT THE SAID PREMISES WERE FREE FROM ALL ENCUMBRANCES, EXCEPT AS STATED, THAT THE GRANTOR HAD GOOD RIGHT TO SELL AND CONVEY THE SAME TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, AND THAT THE GRANTOR WILL, AND THE HEIRS, EXECUTORS, AND ADMINISTRATORS SHALL, WARRANT AND DEFEND THE SAME TO THE GRANTEE AND HEIRS, SUCCESSORS AND ASSIGNS, AGAINST THE LAWFUL CLAIMS AND DEMANDS OF ALL PERSONS.

QUITCLAIM DEED477:28 STATUTORY FORM OF QUITCLAIM DEEDLAST REVISED 1951 § LEAVE A COMMENTA DEED IN SUBSTANCE FOLLOWING THE FORM APPENDED TO THIS SECTION SHALL, WHEN DULY EXECUTED AND DELIVERED, HAVE THE FORCE AND EFFECT OF A DEED IN FEE SIMPLE TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, TO THEIR OWN USE, WITH COVENANTS ON THE PART OF THE GRANTOR, FOR HIMSELF, OR HERSELF, HEIRS, EXECUTORS AND ADMINISTRATORS WITH THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, THAT AT THE TIME OF THE DELIVERY OF SUCH DEED THE PREMISES WERE FREE FROM ALL ENCUMBRANCES MADE BY THE GRANTOR, EXCEPT AS STATED, AND THAT THE GRANTOR WILL, AND THE HEIRS, EXECUTORS AND ADMINISTRATORS SHALL, WARRANT AND DEFEND THE SAME TO THE GRANTEE AND HEIRS, SUCCESSORS AND ASSIGNS FOREVER AGAINST THE LAWFUL CLAIMS AND DEMANDS OF ALL PERSONS CLAIMING, BY, THROUGH OR UNDER THE GRANTOR, BUT AGAINST NONE OTHER.

FIDUCIARY DEED477:30 STATUTORY FORM OF FIDUCIARY DEED. – A DEED IN SUBSTANCE FOLLOWING THE FORM APPENDED TO THIS SECTION SHALL, WHEN DULY EXECUTED AND DELIVERED, HAVE THE FORCE AND EFFECT OF A DEED IN FEE SIMPLE TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, TO THEIR OWN USE, WITH COVENANTS ON THE PART OF THE GRANTOR, FOR HIMSELF OR HERSELF, THAT, AT THE TIME OF THE DELIVERY OF SUCH DEED, THE GRANTOR WAS DULY AUTHORIZED TO MAKE THE SALE OF THE PREMISES; THAT IN ALL OF THE GRANTOR'S PROCEEDINGS IN THE SALE THEREOF, THE GRANTOR HAS COMPLIED WITH THE REQUIREMENTS OF THE STATUTE IN SUCH CASE PROVIDED; AND THAT THE GRANTOR WILL WARRANT AND DEFEND THE SAME TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, AGAINST THE LAWFUL CLAIMS OF ALL PERSONS CLAIMING BY, FROM OR UNDER HIM OR HER IN THE CAPACITY AFORESAID.

WHAT IS A MORTGAGE ?

A MORTGAGE IS A GRANT OF A NON POSSESSORY INTEREST TO EVIDENCE AND SECURE A LOAN USING THE FEE SIMPLE ESTATE?

HOW DOES A MORTGAGE WORK?

THE MORTGAGOR OR GRANTOR GRANTS AN EQUITABLE INTEREST TO THE “BANK” SUBJECT TO THE MORTGAGE COVENANTS AND RETAINS THE FEE OR LEGAL POSSESSORY INTEREST-THE FEE INTEREST IS DIVIDED AND IS NOT MERGED AGAIN UNTIL EITHER THE MORTGAGE IS DISCHARGED OR A FORECLOSURE DEED IS RECORDED.

FORECLOSURE DEEDA DEED IN SUBSTANCE IN THAT FORM SHALL, WHEN DULY EXECUTED AND DELIVERED, HAVE THE FORCE AND EFFECT OF A DEED IN FEE SIMPLE TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, TO THEIR OWN USE, WITH COVENANTS ON THE PART OF THE GRANTOR, FOR HIMSELF OR HERSELF, THAT, AT THE TIME OF THE DELIVERY OF SUCH DEED, THE GRANTOR WAS DULY AUTHORIZED TO MAKE SALE OF THE PREMISES; THAT IN ALL OF THE GRANTOR’S PROCEEDINGS IN THE SALE THEREOF, THE GRANTOR HAS COMPLIED WITH THE REQUIREMENTS OF THE STATUTE IN SUCH CASE PROVIDED; AND THAT THE GRANTOR WILL WARRANT AND DEFEND THE SAME TO THE GRANTEE, HEIRS, SUCCESSORS AND ASSIGNS, AGAINST THE LAWFUL CLAIMS OF ALL PERSONS CLAIMING BY, FROM OR UNDER HIM OR HER.

THE CHAIN OF TITLE

THE RECORDED HISTORY OF THE GRANTS (DEEDS)FOR A PROPERTYTHE STATUTORY COVENANTS,PROMISES OR AGREEMENT THAT ACCOMPANY THE FEE SIMPLE GRANT:A)WARRANTY COVENANTSB) QUITCLAIM COVENANTSC)FIDUCIARY DEEDD) FORECLOSURE DEED

JON SAYS: NOBODY SHOULD REALLY CARE ABOUT COVENANTS ANYMORE:

WHY WOULD I SAY SUCH THING?

TITLE INSURANCE INSURES MARKETABILITY

WE DON’T GO CHASING UP AND DOWN THE CHAIN WHEN THERE IS A TITLE PROBLEM WE MAKE A TITLE INSURANCE CLAIM

IF A GRANT CONVEYS A FEE SIMPLE INTEREST, THEN WHAT IS AN EASEMENT AND HOW IS IT CONVEYED?EASEMENTS ARE-AN EASEMENT IS THE GRANT OF A NONPOSSESSORY PROPERTY INTEREST THAT GRANTS THE EASEMENT HOLDER PERMISSION TO USE ANOTHER PERSON'S LAND. EASEMENTS ARE EVIDENCED BY DEEDS AND RECORDED IN THE SAME WAY. 

TWO KINDS OF EASEMENTS

1) EASEMENTS THAT RUN WITH THE LAND(APPURTENANT) 2) EASEMENTS THAT DON’T RUN WITH THE LAND( IN GROSS OR PERSONAL EASEMENTS)

IN ORDER TO TELL DIFFERENCE YOU HAVE TO UNDERSTAND WHAT AN EASEMENT IS BY NATURE AND HOW IT AFFECTS THE FEE SIMPLE ESTATE

WHEN AN EASEMENT THAT RUNS WITH THE LAND IS CREATED , TYPICALLY THERE ARE TWO SEPARATED ESTATES THAT ARE ADDED OR SUBTRACTED FROM THE FEE SIMPLE INTEREST THAT ARE CREATED1) THE DOMINANT ESTATE OR THE BENEFITTED ESTATE2) SERVIENT ESTATE OR BURDENED ESTATE

LOOK AT EXAMPLE

APPURTENANT EASEMENT LANGUAGE

- AND TO THEIR HEIRS, SUCCESSORS AND OR ASSIGNS-STATUTORY CONSTRUCTION IN FAVOR OF APPURTENANT477:26 EASEMENTS, APPURTENANCES, ETC.IN A CONVEYANCE OF REAL ESTATE OR ANY INTEREST THEREIN, ALL RIGHTS, EASEMENTS, PRIVILEGES AND APPURTENANCES BELONGING TO THE GRANTED ESTATE OR INTEREST SHALL BE DEEMED TO BE INCLUDED IN THE CONVEYANCE, UNLESS THE CONTRARY SHALL BE STATED IN THE DEED, AND IT SHALL BE UNNECESSARY IN ORDER FOR THEIR INCLUSION TO ENUMERATE OR MENTION THEM EITHER GENERALLY OR SPECIFICALLY.

WHEN A PERSONAL OR IN GROSS EASEMENT IS CREATED NO DOMINANT OR SERVIENT ESTATE IS CREATED AND THE EASEMENT IS PERSONAL TO THE GRANTEE ONLY.

LOOKING AT CASES: FORMAT FOR EVERY CASELAW SCHOOL 1011) FINDING OF FACTS2) LAW3)APPLICATION OF FACTS TO LAW4) DECISION

CASE #1 TANGUAY V.BIATHROW (NH 2007)

APPURTENANT EASEMENT( RUNS WITH LAND)

V.

EASEMENT IN GROSS

CASE #1 EASEMENT APPURTENANT V. IN GROSS

COURT ANALYZES THE ACTUAL EASEMENT LANGUAGE AND THE CREATION OF THE DOMINANT AND SERVIENT ESTATE TO MAKE A DETERMINATION ON THE KIND OF EASEMENT

VERMONT- CASE 2- NIMBY AND EASEMENTSTHE GRANT MUST BE VALID- IN ORDER TO DEFEND A CHALLENGE TO YOUR EASEMENT RIGHT, YOU MUST HAVE A VALID GRANT AND YOU MUST BE ABLE TO PROVE YOUR CHAIN OF TITLE.

EASEMENT, COVENANTS AND RESTRICTIONS

ALL REALLY ALL JUST AGREEMENTS TO BURDEN THE LAND OR BENEFIT ITSO SAME RULES APPLYQUESTION DO THE COVENANTS AND RESTRICTIONS RUN WITH THE LAND?OR ARE THEY PERSONAL?WHO IS BENEFITTED BY THEM?WHO CAN MAKE A CLAIM UNDER THEM?

CASE # 2 COVENANTS AND RESTRICTIONSLYNCH V TOWN OF PELHAM (2014)

CASE# 3 REAL EASEMENT ISSUES, “THE JONES EASEMENT- CORNISH, NH”

UNDERSTANDING EASEMENTS HELPS YOU SOLVE PROBLEMS AND CLOSE DEALS.THIS IS AN ACTUAL CLOSING THAT TOOK PLACE IN 2015 AFTER AN ACCESS PROBLEM WAS DISCOVERED.

APPLICATION TO YOUR PRACTICE

LOOKING AT THE DEED YOU ARE SELLING OR BUYINGLOOKING AT THE EASEMENT ON THE GROUNDDISCLOSURE