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Daily Development for Wednesday, May 21,
2003
by: Patrick A. Randolph,
Jr.
Elmer F. Pierson Professor of
Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper
Martin
Kansas City, Missouri
dirt@umkc.edu
EASEMENTS; CREATION; GRANT; "RESERVATIONS
IN
STRANGERS:" New York
reaffirms rule that a fee grantor cannot reserve
an enforceable easement benefitting land not retained by the
grantor.
Beachside Bungalow Preservation Association of Far
Rockaway, Inc.
v. Oceanview Associates,
LLC, 753 N.Y.S.2d 133 (A.D. 2 Dept. 2003).
Owners of bungalow brought suit against the owner of 5
adjacent parcels
who built an apartment
building on the parcels which the bungalow
owners claimed encroached on a 40-foot wide easement for ocean
access
provided for in deeds existing in
defendant's chain of title. The grantors
of those deeds, however, did not own the parcels intended to
be
benefitted by the purported
easements. Following the majority rule
invalidating easements benefitting land not owned by the grantor of
the
easement, the court found this
easement to be ineffective.
In this case there was some uncertainty about the
validity of the
easements to begin with,
because they appear to have been repudiated by
subsequently recorded correction deeds. But the court
shortstopped any
discussed of that
factual issue by invoking the established New York
principle on reservations in strangers.
Apparently the easements, if
valid, were
created by the owner of the servient property in favor of
third
parties who were not simultaneously
receiving title to the benefitted
property, having already obtained such title either from this
grantor or
others.
Comment 1: In their treatise on easements, Bruce and
Ely comment that
the rule that easements
cannot be reserved in strangers has been criticized
by most commentators as "a pointless technicality
that serves to frustrate
the grantor's
intent." They note that a number of modern courts have
abandoned it, and that the Restatement of Property
and now the Restate
of Servitudes both
reject it. On the other hand, New York courts have
consistently continued to apply it because of a
concern about the stability
of land
titles. See Estate of Thomson v. Wade, 509 N.E. 2d 309
(N.Y.
1987).
The editor has always stood foursquare in favor of
predictability as a
sound foundation for
the real estate marketplace. Bargains are easier
when rules are certain. Changing rules creates
uncertainty. But we rely
on the
common law as well to improve the legal system over time,
identifying loopholes and uncertainties and resolving
them with a mind
to good policy.
The same should be true for anachronisms, at least where
they are inconsistent with what many participants in
the marketplace
believe is or should be
the law.
Changing this rule would in fact carry out the intent
of parties to
agreements in which such
easements are created. If the rule were
prospective only, it would not frustrate those who relied upon the
old
rule in concluding that easement
claims were ineffective. Parties who
weren't keeping track of the law and thus might be frustrated in
relying
on the old rule in the future
should subscribe to DIRT and keep up better.
In any event, they're likely to be outnumbered by those who had
assumed
that an easement created in a
stranger was valid in the first place.
In
short, moving the common law to the position that most likely
tracks
the expectations of the
marketplace is probably a good thing, and ought
to happen here.
Comment 2: Note that the rule against easements in
strangers almost
certainly could be
circumvented at the time the grantor transfers the fee by
transferring an easement to the benefitted party just
prior to transferring the fee.
On the one hand, it could be said that with such
circumvention possible,
there is no point
in changing the rule. On the other hand, if it is so
easy
to circumvent the rule, then there
doesn't appear to be much point in the
rule to begin with.
Readers are encouraged to respond to or criticize this
posting.
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