[BROKERDIRT] DD 10/30/06 Reinventing a Merged Away Easement

Daily Development for Monday, October 30, 2006
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; TERMINATION; MERGER:   Although merger may presumptively terminate an easement, the party in whom the merger has occurred may revive the easement by identifying it in the deed when selling the dominant parcel, at least if the transferee of the servient estate also was aware that the easement was revived.  

Simone v. Heidelberg, 812 N.Y.S.2d 608 (A.D. 2 Dept. 2006).

 An easement between two properties was extinguished when the two properties were bought by the same person.  When the properties were subsequently sold separately, the easement was recreated and documented in the deed conveying the dominant estate.  The court held that the servient estate owner had actual knowledge of the recreated easement and that the servient estate owner did not demonstrate an "unequivocal intent to abandon the easement" or an overt act that indicated that the dominant estate owner did not have an interest in the easement.

Comment 1: In this typically sketchy “New York style” case report, we aren’t really told the sequence of transfers.  But it appears that the dominant estate was first sold, with the revived easement in the deed, and then the servient estate was sold.  The servient estate deed, apparently, did not mention the easement, but the servient estate purchaser was aware of it.

Comment 2: Although the editor used the term “presumptively merged” to describe the status of the easement at the time that both dominant and servient parcels passed into the same hands, the court says that in fact the easement was destroyed and then revived.  The distinction appears to be entirely semantic. 

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