Descriptions Based on Unrecorded Plats, Part 2.
My last column addressed problems with lot descriptions incorporating unrecorded plat maps. However, most disputes over such plats concern easements. Otherwise reasonably sane wordsmiths (especially attorneys), who take meticulous care when preparing documents evidencing the transfer of fee title to some property, often let their brains go comatose when documenting access to the same parcel. For whatever reason, people get careless when writing easements.
In part this is because the law does not require the same degree of care for easements as for transfer of fee title. I suspect mostly that scriveners don't give easement documentation much respect because they view a right of way as a mere permissive use of some insignificant strip along the edge of someone else's ownership. As long as the neighbors are friendly, asking them to sign a carefully worded easement deed seems an unnecessary nuisance. Unfortunately, such an attitude invites strife. In order to be useful an easement must be binding on subsequent owners of both the servient and dominant estates; easements must go beyond mere permission to the status of full property rights.
Both this and my last column address requirements of the so-called Statute of Frauds for creating legal descriptions sufficient to support full property right status in some transfer involving land subdivided into lots according to an unrecorded plat. The courts generally recognize easements following the roads shown on such a plat-once property is conveyed according to its plan-whether the map is recorded or not. There are some important caveats, however, especially when the map is unrecorded because it is preliminary at the time some of the lots were transferred.
Chicago Title Ins. Co. v. Investguard Ltd., 449 S.E. 2d 681 (Ga. App. 1994).
In this case a Mr. Jennings purchased three adjoining tracts of land, using borrowed money secured by separate deeds to certain other parties. One of the three parcels abutted a public road, while the other two were more remote. On the security deed to the parcel abutting the road, Jennings reserved a 60-foot wide easement for ingress and egress, but did not describe the easement's location. Jennings had a plat prepared of the intermediate parcel, which showed a 60-foot strip along one boundary of the intermediate parcel, running to the subject property (the one furthest from the road). The plat also showed a 60-foot strip crossing the parcel that lay against the road. He secured the loan to the second parcel with a deed to a Mr. Miller, describing the parcel as "Section Two on a plat," and secured the loan on the subject parcel with a deed to Investguard. The security deeds for the subject parcel and for the parcel abutting the road made no reference to the plat. Jennings then defaulted, and Investguard, after foreclosing, found it difficult to enforce its access across the other two parcels, leading to this lawsuit.
"The subject property in these appeals is separated from a public road by two other tracts that formerly were owned by JenningsÂ¿.Prior to purchasing the property in question, Jennings executed a deed to secure debt on the second tract to Sidney Miller as security for a loan. In that deed, the second tract was described as 'Section Two on a plat by [a surveyor] and dated October 15, 1986, the same being a compiled plat.' The plat itself, which was not recorded, showed two parallel lines beginning from the northern edge of the second tract and extending across both that tract and the third tract into the subject property. It also bore the designation 'R/W,' 60', a scale of one inch equals 50 feet, and an arrow indicating north. Also before purchasing the property in question, Jennings conveyed the third tract to Empire Financial Services, Inc. pursuant to a deed under power of sale, and that deed contained a reservation of a 60-foot-wide easement for ingress and egress to the subject property.
"'Where a deed to land refers to a map or plat as a part of the description of the land conveyed, such map or plat will ordinarily be considered as incorporated in the deed itself.'Â¿Further, where a plat is so incorporated by reference in a deed, 'the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.'...
"With regard to the second tract of land, the description of the property indicated on the unrecorded plat prepared by [the surveyor] thus became part of the deed to secure debt Jennings executed in favor of Miller. We agree with the trial court that this incorporated plat established an easement across the second tract of land.
"The 60-foot-wide parallel lines across the property indicated on the plat designated as 'R/W' can be reasonably interpreted only as an easementÂ¿.Further, the plat indicated that it was drawn to scale, with one inch equaling 50 feet, and designated which direction was north. Applying those keys to the plat, the exact dimensions and location of the easement could be determined." 449 S.E. 2d at 683-84.
There was still a problem, however, with the general reservation of a 60-foot easement across the parcel that abutted the public road, for the location of that easement was not itself described: "However, there is no absolute requirement of indicating the exact path of an easement. 'Perfection in legal descriptions of tracts of land is not required. If the premises are so referred to as to indicate the grantor's intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.'Â¿
"In the instant case (the case before the court), the deed indicates a clear intention to reserve an easement and it establishes the width of that roadway easement. The starting and ending points of that roadway can be easily ascertained by reference to the same plat that was incorporated by reference to the deed to secure debt on the second tract. Under these circumstances, the easement granted on the third tract was identifiable, and the trial court thus correctly determined that access to the subject property existed by virtue of the easement Jennings created on the second and third tracts." 449 S.E. 2d at 684.
The court in this case is extremely forgiving as to the level of description drafting it is willing to accept to create an easement. It used the unrecorded plat to locate the easement across the parcel that abutted the public road, even though the plat was not actually referenced in the security deed to that parcel. It relied on scaling from the unrecorded map for its location of the easement, and saw no problem with creating an easement through a series of deeds that in reality were merely financing instruments.
Potis v. Coon, 496 A. 2d 1188 (Pa. Super. 1985).
Samuel and Mary Coon hired a surveyor to prepare a series of subdivision maps of their land. The first map, dated 1968, delineated two tiers of lots surrounded by a "U-shaped" 40-foot wide road, with both ends of the "U" anchored on a public road. The Coons then sold one of the lots that lay alongside of the "lower" leg of the 40-foot road. In 1970 the Coons had their surveyor prepare a new map, showing the same lots as on the 1968 map, and adding more lots to the north of the "upper" leg of the 40-foot road. The Coons sold another lot, and then had the surveyor prepare a third map in 1972, showing the earlier lots and adding more to the south of the lower leg of the 40-foot road. The Coons sold a few more lots, none abutting the upper leg of the road, which was never opened for travel. The three maps were not filed in the plat records.
In 1975 the Coons sold all their remaining land to Paul and Beverly Coon, who decided to resubdivide the land. Their new subdivision changed the layout envisioned by the original Coons and eliminated the unopened upper leg of the 40-foot road. The grantees of the original Coons sued for an injunction to prevent the new owners from subdividing the land in a way that eliminated their claimed easement along the upper leg of the road.
The original Coons had sold each parcel using metes and bounds descriptions. Each description included a call to a "proposed 40-foot wide road" and each referred to one or the other of the maps, identifying them by date, surveyor's name and by a number. The court held that these descriptions reserved for the purchasers an easement, as shown on the maps, along the unopened upper leg of the 40-foot road, even though they did not need or use this leg for access.
"It is well settled that the grantee of a lot, which is sold according to a plan of lots on which streets or alleys not previously opened or projected as a public street are plotted out by the grantor, acquires an easement over those streets and alleys as a private right of property arising out of the grant, of which he cannot be deprived without compensation.Â¿
"References to a plan contained in deeds make the plan a part of the deed or conveyance and constitute a dedication of the streets, alleys and ways shown on the plan, to the use of the purchasers as public ways.Â¿'Where a street called for a boundary in a deed is not a highway nor dedicated to public use, the grantee does not take title in fee to the center of it, but by implication acquires an easement, or right of way, over the lands. There is in such a case, an implied covenant that there is a way corresponding with the one described in the deed, that so far as the grantor is concerned it shall be continued and that the grantee, his heirs and assigns, shall have the benefit of it.'Â¿
"The rights of a non-abutting property owner within the plan are no less than those of a property owner abutting upon the street in question.Â¿The non-abutting property owner's rights in the street grid of the plan are not limited to those streets which are necessary to the enjoyment of his property or which materially benefit or add to its value." 496 A. 2d at 1192-93.
After stating these general rules, the court held as follows:
"These unrecorded maps show a subdivision plan bounded on two sides by two legs of a 40-foot roadÂ¿This 40-foot roadÂ¿is expressly referred to in the deed descriptions of the appellants' lots.Â¿Under the above-cited case law, then, we are compelled to conclude that appellants, as grantees of lots in the subdivision, acquired an easement over the unopened road in question (i.e. the top leg of the "U") because their lots were sold according to a plan of lots on which the road was plotted out by the grantor. Additionally under the principles we have cited above, the fact that the maps were unrecorded and the fact that appellants' lots do not abut on the road in question do not affect appellants' contractual right to the easement." 496 A. 2d at 1195.
The rather broad conclusion of this court-that the act of selling a lot in a proposed subdivision, before it is finalized, creates a right in the purchaser to a continuation of the road layout shown on the version of the plat in existence at the time of sale, whether or not the road layout is necessary for the enjoyment of the lot-should give pause to developers (at least in those areas that still allow the sale of lots in preliminary subdivisions). Notice that the operative event that "locked" the subdivision into a set plan and created the easements was the sale of the first lot. Compare this sequence with that in the following case.
Berg v. Ting, 125 Wn. 2d 544, 886 P. 2d 564 (1995).
The Cahills and the Hansons were neighbors in Seattle. The Hansons signed a contract to sell their land to the Youngs in 1983. Later in 1983, the Cahills and the Youngs applied to the city for a short plat to combine the two properties and then divide them into seven lots, five on the Hanson property and two on the Cahill property. Another neighbor, the Bergs, opposed the subdivision at public meetings. In 1984 the Cahills, Youngs and Bergs met and agreed that the Bergs would withdraw their opposition in exchange for an easement across the proposed short plat. The Bergs dropped their opposition and the plat received conditional approval.
The Cahills and Youngs, as grantors, and the Bergs as grantees, then met and executed the following agreement:
"Grantors have combined their respective properties for the purpose of subdividing them and have applied to the City of Seattle for approval of a Short Subdivision [and various zoning permits].... "5. Grant of Easement. For value received, the receipt of which is hereby acknowledged by Grantors, Grantors hereby grant, convey and warrant to Grantees and their licensees, invitees, heirs, successors and assigns a perpetual, nonexclusive easement in, under and over the following tracts:
"Tract A: The area designated as the private driveway across Lots A, B, C, and F, the exact location of which shall be determined by reference to the conditionally granted Application when the same is finally approved and recorded: and "Tract B: That portion of Lots F and G of the Short Subdivision applied for under the Application as the same is finally approved and recorded situated between the private driveway referred to in Tract A above and the shore of Lake Washington, the upland boundary of which portion shall be a line commencing at the northwest corner of Lot G and running southerly to the point of intersection with the southerly boundary of the private driveway referred to in Tract A above, thence westerly 50 feet along the southerly boundary of said private driveway, thence southerly, in a line parallel to the westerly boundary of Lot G, to the southerly boundary of Lot F." 886 P. 2d at 567.
The agreement also contained covenants as to the various parties' responsibilities for surveying, constructing and maintaining the easement, and concluded by reciting the legal descriptions of the overall Berg, Cahill and Young parcels. The agreement was recorded in 1984. The Youngs then allowed their interest in the Hanson parcel to expire (Hanson had not signed the easement agreement). The short plat was finally approved in 1988, containing six rather than seven lots, which were reconfigured and given different designations than those found on the original application. The Cahills then sold their land to the Tings, without mentioning the easement in the deed (the Bergs had not yet constructed any driveway along the easement). This lawsuit ensued when the Bergs attempted to enforce their rights as per the agreement, and the Tings denied the existence of any easement across their land. The court agreed with the Tings, holding that the agreement violated the Statute of Frauds and thus did not create an easement.
"Although it is an incorporeal right, an easement is an interest in land.... An express grant of easement is a conveyance within the meaning of the statute of frauds....
"To comply with the statute of frauds, 'a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description.'Â¿However, in the case of an easement, a 'deed [of easement] is not required to establish the actual location of an easement, but is required to convey an easement' which encumbrances a specific servient estate.Â¿The servient estate must be sufficiently described.
"Here, the writing describes the interest conveyed as 'perpetual nonexclusive easement in, under and over' two tracts of land, tract A and tract B. These tracts are described as certain portions of the lots of the conditionally granted short subdivision application 'when the same is finally approved and recorded' and 'as the same is finally approved and recorded...' The granting clause thus refers to a description of the encumbered property as the same is approved in the future, and refers to a then non existent instrument as defining the servient estate. The grant thus did not contain a sufficient description of the land nor did it reference and instrument which did contain such a description. "The Bergs argue, howeverÂ¿that the grant was of a 'floating easement' and rely on the principle that the easement's location need not be exactly established in the conveyancing instrument. They point out that appended to the grant of easement were legal descriptions of the three parcels-The Young and Cahill parcels (which were originally intended to be encumbered by the easement) and the Berg parcel. They reason that the Cahill property was thus sufficiently described and the location of the easement on that property could be established in the future.Â¿
"[A]ccepting the Bergs' argument would require that we ignore language in the granting clause which clearly shows the parties' intent that less than the entire Cahill property comprise the servient estate. Paragraph 5 of the grant, titled 'Grant of Easement,' does not refer to the entire Cahill property. Nothing in the granting clause even hints that the entire Cahill property is the servient estate; instead the granting clause contains a description of tracts which, while inadequate as a description of the servient estate, obviously shows that less than the entire Cahill property was intended as the servient estate. Where it is manifestly apparent that the parties' granting language was clearly not intended to define the entire Cahill (and Young) parcels as the servient estate, we will not substitute the appended legal description of the Cahill parcel for the description in the granting clause in order that the Bergs may be saved from the statute of frauds problem which the grant of easement presents.
"It is essential to the integrity of the recording system and the stability of real estate titles that we reject the contention that it was adequate to append the description of the entire Cahill tract.... The grant itself contains its own fatal deficiency by referring to and relying entirely on the description of lots in a short plat to be later (almost 4 years later in fact) approved and recorded." 886 P. 2d at 569-70.
Note that in the Potis case the original subdivider created a plan and sold lots according to it, automatically creating an easement in favor of those lots, despite the fact that the plan was unrecorded. By selling lots, the subdivider (and his successors) became locked in to the easement layout shown on the plan in existence at the time of the first sale. In Berg, the developers granted an easement to a neighbor, rather than to one of the lots within the subdivision, using a description that appeared to contemplate that the layout would change before the plan was finalized. The Bergs must have been agreeable to this uncertainty, but its existence allowed a successor to the developer to reject the easement altogether, even though the successor obviously knew of the Bergs' interest since the agreement itself was recorded. Berg is a good example of how the Statute of Frauds can bite the unwary.
Hopefully this and my last column will dispel some of the mystery surrounding descriptions of property according to unrecorded plats. It is generally better not to look for answers based on "rules" ("Should I prorate according to the plat dimensions or should I follow the directions of the metes and bounds?") but to look instead for whatever elements in the particular case lend some certainty. If the unrecorded plat was actually surveyed and the lots were sold according to the survey, then the survey probably provides the certainty and your choice of "rules" should lean toward the ones that help you reconstruct the survey. If the unrecorded plat was never surveyed, then the metes and bounds might be more certain depending on the precision (or lack of it) of the information on the plat. If the plat is unrecorded because it is subject to change, then you have to look at the situation of the parties. If some of the parties purchased lots at a time when one version of the plat appeared to be the subdivider's layout of the property, then those parties may be able to insist on a continuation of that layout. If, on the other hand, some of the parties accepted deeds knowing that the layout will change (and is thus uncertain) the court just might void the transaction, at least as against subsequent purchasers.