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. 

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.

ABOUT DIRT:

DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription, send the message
signoff DIRT to the address:

listserv@listserv.umkc.edu

for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:

listserv@listserv.umkc.edu

DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://cctr.umkc.edu/dept/dirt/

-----

To be removed from this mailing list, please go to
<https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://listserv.umkc.edu/listserv/wa.exe?SUBED1=BROKERDIRT%26A=1>
or send an email message to the address listserv@listserv.umkc.edu,
with the text SIGNOFF BROKERDIRT in the body of the message. Problems
or questions should be directed to manager@listserv.umkc.edu.

randolphp@UMKC.EDU