by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
RECORDING ACTS; INQUIRY NOTICE; EASEMENTS: As right of way easements typically are appurtenant, buyers of the benefitted land may assume that a recorded easement is appurtenant, and therefore buyers have no duty of inquiry to ascertain whether facts exist that would establish that the right of way is not appurtenant and therefore does not transfer with the property. Olson v. Trippel, 893 P.2d 634 (Wash. Ct. App. 1995).
In 1965, a written easement agreement was executed by adjoining landowners to allow access to a lot purchased by plaintiffs. The 1965 easement recited that it "shall run with and be appurtenant to" plaintiffs' lot and was duly recorded. In 1967, the parties executed and recorded a new easement agreement, which stated that it was intended to replace the 1965 easement, but failed to recite whether it was appurtenant to the plaintiffs' lot. Circumstances existing at the time of the 1967 easement, however, suggest that the parties decided to change the easement from an appurtenant easement to an easement in gross.
After plaintiffs purchased the subject lot, the adjoining property owners denied plaintiffs access to the lot and contended that the subject easement was an easement in gross which terminated upon the sale of the property. Plaintiffs brought a quiet title action. The adjoining landowners were granted summary judgment based on affidavits which recited facts extrinsic to the public record regarding the 1967 easement and the plaintiffs appealed.
Held: Reversed - the buyers were bona fide purchasers entitled to assume that a record conveyance of an easement created an appurtenant easement.
The Court first noted the general rule that, in the absence of knowledge of title in another or of facts sufficient to put one on inquiry, a purchaser of real property is entitled to rely on the record title to the property. The inquiry rule imputes to the purchaser notice of all facts which reasonable inquiry would disclose and applies only when a purchaser has a duty of inquiry. The Court concluded that the inquiry rule was not triggered because a reasonable person would not have thought that the 1967 easement might be of a type different from the 1965 easement. Moreover, the Court held that the inquiry rule was not triggered by any alleged gap in the chain of title. Because an appurtenant easement is part of the realty it benefits, it passes with the dominant estate unless the parties otherwise agree. Thus, its omission from a conveyance is without legal significance and would not cause a reasonably prudent person to inquire beyond the record.
The Court further noted that, although the "context rule" requires it to construe a written agreement in the context in which it was executed, the context rule is inapplicable in a dispute between an original party and a subsequent purchaser who is not under a duty of inquiry.
Finally, the Court concluded that the 1967 easement was appurtenant to plaintiffs property. In so doing, the Court noted several general principles of easement law: an easement is an interest that burdens the servient estate; an easement can be appurtenant or in gross; an appurtenant easement benefits the dominant estate while an in gross easement benefits a person or entity; an easement generally ends when its purpose ends; and there is a "very strong" presumption that an easement is appurtenant rather than in gross.
Comment: The editor concurs. In fact, if the servient owners were represented by counsel in the 1987 "rewrite" of the easement, and counsel was aware that the parties intended to change the easement to an easement "in gross," don't we have a case of professional malpractice? Certainly the client's signature of the document in this case would not be viewed as ratification of the attorney's work and a waiver of a malpractice claim.
But even though the lawyer's actions might be malpractice, isn't it an easy mistake to make?
If the lawyer failed to inquire of the client to get the necessary information to establish that this new easement was to be in gross, rather than appurtenant, would this failure to inquire alone be malpractice? Should the strong presumption that right of way easements are assumed to be appurtenant excuse the lawyer from asking, or should it underscore the significance of the lawyer's error?
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