Easement Issue
I'm in preliminary negotiations to buy a 4-plex. An easement is needed for a walkway between this building and the next building, as the walkway straddles the property line.
The owner of the other building (who's the seller of the 4-plex) gave me an easement proposal drawn up by his attorney. The agreement states that the seller is the Grantor and that I would be the Grantee. Also, no survey was taken nor were the dimensions of the easement calculated.
Is there any benefit or drawback to being the Grantor rather than the Grantee?
Should a survey be taken with the boundaries of the easement expressly listed?
Thank you very much for any help
Tracy
absolutely. metes and bounds should be included that way there is no misunderstanding between parties.
Hi lp1,
Thanks for the reply. I'll look into getting a survey done.
Any thoughts on being the Grantor vs. the Grantee? The reason is that the seller will soon be transferring ownership of the other building to his son. While I've known these people for about 15 years, and get along well with his son, if there's an advantage to being either the Grantor or Grantee, I'd like to know about it.
Thanks again,
Tracy
Tracy,
I think you really need to have your real estate attorney review the easement proposal, particularly since the current owner is planning to transfer title to the other property to his son.
It seems to me at the very least, there should be provisions for maintenance, repairs, replacement (work and expense) shared by the owners of both properties.
Hi Nancy,
I appreciate the advice. And I will be retaining a new attorney soon, because my previous attorney refuses to deal with the other party (personality conflict).
There have been many obstacles to this transaction, but I'm still trying to make it work.
Thanks,
Tracy
Nancy,
As to your second point, we have agreed on the maintenance and repair issues. I'm just very curious to know if I should make an issue out of being named the Grantee instead of the Grantor.
Thanks,
Tracy
Tracy,
I saw that "grantor/grantee" in your initial post and was puzzled because I hadn't heard those terms used in the context of an easement--rather in selling (grantor) or buying (grantee). Perhaps the latter is how the terms were being used since you are negotiating a purchase contract for the property.
I just have a gut feeling that your attorney should go over the documentation here with a fine-toothed comb and explore "what if" scenarios. Since the easement straddles the line between the 2 properties, it would seem that the same language should be recorded against both deeds--showing, of course, the surveyed plan so it's clear where the easement path is on each property.
I would defer to your attorney, of course, but I would be inclined to attach the easement document and plan to the purchase contract and incorporate it by reference. Have you had any title search done on both properties? If not, it would be interesting to see what might show up. Also, have you had any discussion with the municipality? I'm just wondering if there are any municipal requirements or restrictions applicable here.
You seem mightily concerned about being the Grantee, but what is your choice? If you owned the ground, you'd be the Grantor, but not owning the ground you can't be!
Seriously, so what?
Every time you or i buy any property or rights to it, such as this easement, we're a G'ee. No onus to it that I know of...haven't had anybody taunting me with "HaHa you're a Grantee!"
Nancy,
Thank you for the additional feedback. I (obviously) don't know much about easements. From poking around the web, I've seen various formats, some that use the Grantor/Grantee designations and some that just say "Mr. A hereby grants to Mr. B..." I don't really know how a "standard" easement is written, if such a thing exists.
My new attorney, informed of the complications which resulted in the prior attorney throwing up his hands and walking out, has suggested that the seller and I work through as many details as we can think of before submitting everything to him for review, at which time the fine-tooth comb will hopefully make an appearance.
It makes sense to me, too, that the easement be part of the purchase contract and recorded during close (I think we talked about this a while ago in a previous post. Yes, same case!). The title is clean, a survey has been done (not the easement survey, though). Haven't checked with the municipality- what would I be checking for?
Your help and advice are sincerely appreciated.
Tracy
Tracy,
Your new attorney's advice makes a lot of sense.
About checking with the municipality, I'm thinking that you speak with the Zoning Officer/Code Enforcement Officer about 2 things:
1. explain that the easement would be running between the 2 properties (you may have to identify the properties) and just ask if the municipality has any restrictions or requirements that would be applicable to this situation. I can't think of any except something that would be related to safety issues, but you never know--each local government is different.
2. inquire about the history of these 2 properties--whether there were any zoning approvals, special uses, variances issued in the past.
Hi John,
Thanks for your input. I'm actually not too concerned, just curious.
It seems that I would own part of the ground, though, since the walkway straddles the property line. So aren't both parties sort of granting the other the easement?
It's not quite the same thing, but what if you and I co-owned a car. But instead of both of us being on the title, you were the listed owner and granted me use of the car in perpetuity. Does it make any difference? Probably not, but still, given the choice, I'd rather be the one doing the granting.
Perhaps the question I should be asking is: Does the Grantor have any rights that the Grantee does not have? Such as the right to unilaterally change the easement, etc.?
Thanks for the comments,
Tracy
Hi again, Nancy
I'll check with zoning as you advised. The property history was searched; this used to be one large lot, which was split in two in 1956 when the current buildings were built. I also went through the permit history quite carefully; everything looks fine.
Thanks,
Tracy[ Edited by TracyH on Date 04/27/2004 ]
Ok, so assuming that the sidewalk stradles the property line you should grant your neighbor an easement to the half that is on your property and he should grant you an easement to the half that is on his property. These mutual easements should mirror each other and should specify that the maintenance costs of the common walk will be born equally. I don't know that a survey is necessary (other than the one you will recieve when you buy the land anyway). The easement should read something like, X grants to Y a permanant and irrevocable easement to the east two feet of his property for purposes of entrance and egress along the existing sidewalk located thereon. The parties agree that the maintenance and repair of said sidewalk will be a mutual expense to be born equally by both parties" or something like that. The grantor in each case is the guy who owns that lot and the grantee is the guy who owns the other lot.
So you are correct, you are both grantee and grantor in this case because both properties really need the easement over the other guys lot.
When you record the easements the surveyors will pick up the recorded easement and show it on their next survey. If you record the easements prior to closing (as you probably should) then they will be on the survey you recieve at the closing.
Hi commercialking,
Mutual easements- now we're talking! Thanks very much for the information. Although I'm half-asleep, this sounds like a good way to handle the easement.
Much appreciated,
Tracy