EASEMENTS LAW SCHOOL FOR ATTORNEYS AND TITLE INSURANCE AGENTS

BY:JONATHAN D.WEIDMAN,ESQ

COURSE OUTLINE 1)Introduction: 5 minutes

2)“Interactive” Teaching: The Basics Review 15 minutes

3)“Interactive” Application and Discussion: 35 minutes

The “The Jones Easement, Cornish NH” - Underwriting Example- (With Jane O’Sullivan)

4) Conclusion: 5 minutes

The Grant 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.

NH Statutory Deed/ Covenant Scheme

477:27 Statutory Form of Warranty 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 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 incumbrances, 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.

NH Statutory Deed/Covenant Scheme

§ 477:28. Statutory Form of Quitclaim 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, 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 incumbrances 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.

NH Deed/Covenant Scheme § 477:30. 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.

NH Deed Covenant Scheme § 477:31. Statutory Form for Foreclosure Deed Under Power of Sale (Quitclaim Covenants)

A 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.

NHStatutory Deed Scheme 477:29 Statutory Form of Power of Sale Mortgage. – A deed in substance following the form appended to this section, when duly executed and delivered, shall have the force and effect of a mortgage deed to the use of the mortgagee and his heirs, successors and assigns with the mortgage covenants and upon the statutory conditions and with the statutory power of sale as defined in the following paragraphs: I. In a conveyance of real estate, the words "mortgage covenants'' shall include in their meaning the same meaning as given to "warranty covenants'' in RSA 477:27.

NH Statutory Deed Scheme

    477:26 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. Source. 1951, 178:4, eff. Aug. 1, 1951.

Easements Defined- The Fee Simplefee 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- wikipedia

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 as 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.

Dividing the Fee Simple The division or variation of the Fee Simple interest provide the basis and foundation for our entire conveyancing system. Condo, Coop, PUD are all really just variations of the fee.

Query? 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.

Easements Basics Defined 1)They are Grants.

2)They need Deed formalities.

3) You must have clear, unencumbered title vested in the fee simple estate to Grant a valid easement interest.

Comparing an Easement and a Mortgage

Similarities:

1) Both are grants of a “less than the fee simple absolute” real estate interest.

2) Both grant a nonpossessory interest in real estate.

3) Both requires unencumbered ownership.

4) Deed formalities

Differences:

1) A mortgage is a security instrument used to secure a promissory note and the equitable and legal interests are separated at the grant, and merged back upon satisfaction and discharge. (Two theories?)

2) Easements are not security instruments and their lifespan depends upon the drafting of the easement instrument.

Back to Law School- SERVITUDES First Year

Basically, (Essentially) there are two basic kinds of easements.

1) Easements in Gross- personal easements that run only to the person. When the person dies, so does the easement.

2) Easements Appurtenant- Easements that run with the land.

Law School First Year – SERVITUDES continued

Creating an appurtenant easement-

In order to have an appurtenant easement……

YOU must be able to identify BOTH the:

DOMINANT ESTATE-benefitted

And

THE SERVIENT ESTATE- burdened

Appurtenant Easement language

“To run with the land”

“appurtenant”

“and to their heirs, successors and or assigns”NH COURTS-statutory construction in favor of appurtenant easement477:26 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.