easement-notarization predates deed

[deboluccia]

Ohio. I have a driveway easement I don't like. I was told when I bought the place 3 years ago there was no easement, just a friendly agreement. I should have read the fine print because the easement is on my title. I consulted an attorney who printed out a copy of the deed for me. In poring over it I noticed that the Grantee had the deed notarized on Dec. 19 1986, three days before the Deed was signed on Dec. 22 1986. Does this give me any hope of weaseling out of this easement? My driveway is my neighbors' only access to their land. On Saturday they blocked my access without informing me. Since my driveway is half a mile long, it is a big deal for me not to have access. Their house is 30 feet from the main road so building a driveway would not be that big a deal.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[justalayman]

your situation is quite confusing to me. Can you clarify?

who is the dominant tenant of the easement? (that's the person that gets the rights to use the easement)

who is the servient tenant? (that is the person that owns the actual land the easement crosses)

what are the rights afforded by the easement? (ingress, egress, utility ROW, etc)

who is charged with maintenance, if specified?

 

[deboluccia]

The question is whether a notary act can predate the deed it acknowledges.

 

[154NH773]

I consulted an attorney who printed out a copy of the deed for me. In poring over it I noticed that the Grantee had the deed notarized on Dec. 19 1986, three days before the Deed was signed on Dec. 22 1986. Does this give me any hope of weaseling out of this easement?

What did your lawyer say?

You need to clarify the situation. What did the notary notarize? Are you saying that the notary certified a signature before it was actually signed, or are you refering to the filing of the deed; or what? (plus all the other questions asked above)

 

[justalayman]

The question is whether a notary act can predate the deed it acknowledges.

thanks for the clarification. Have a good day.

 

[FlyingRon]

Notorization is presumptive proof that the signature was made by who signed it. Even if there was a mistake in the notarization, you'd still have to prove that the person who had apparently signed as the grantor either wasn't the actual grantor or that they did it at a time they didn't have ownership interest in the property.

 

[justalayman]

but since they bought the home subject to the easement, they really don't have an argument to make here. It really doesn't matter what happened 20 years before they owned the place. What matters is they bought a house with an easement reserved as described.


another fact the OP failed to provide is when the grantor signed the deed. As long as the grantors issued the deed as written, when the grantee signed it isn't really relevant. You will often have the grantor signing days, and sometimes weeks prior to the grantees acceptance of the deed.

 

[deboluccia]

When I bought the property, I was told verbally that there was no easement and given a copy of a license agreement with the same neighbors for the same driveway. I was told that the license agreement would not be binding--in fact, it's not-- but was asked as a personal favor to give the neighbors some time to make other arrangements. Because I had just been diagnosed with a serious illness, I was not able to function as I should have. I called the title company a few weeks after closing and was once again assured that the easements I saw on the title had nothing to do with the driveway. I am unquestionably at fault for not having consulted a real estate lawyer at the time. Now I am just trying to find some kind of loophole to get out of this. On Saturday my neighbors blocked my access to my home for several hours with no forewarning and no apology. They consider my driveway their land. I don't really think the neighbors even know there's an easement. It was drawn up 35 years ago with people who have since moved. I don't believe the guy I bought from even realized that an easement is a permanent thing, he thought it went away with the former neighbors. The notarization reads "We acknowledge that we did sign the deed blah blah". The lawyer I consulted did not notice the discrepancy, I did.

 

[Terminus]

Notarization

Strangely enough (just read up on this) the grantee's signature is not a requirement for a deed to be legally. Most register's won't accept a deed without it, but under common law it is not a requirement. Only the grantor's signature is.

For the easement.....if it is 35 years old, as you stated, even if the deed was invalid unwritten rights in the driveway would have blossomed. So the easement is there.

Now at the same time the the dominant tenant does not have the right to prohibit you from use of your property...as you do not have the right to prohibit his use of the driveway. If this blockage is a common occurrence, then a nice registered letter noting the problem to your neighbor is step one. If this is a once and while thing....just talk with them.

In my experiences with these issues....just getting neighbors to talk and understand each other solves the problem a majority of the time.

 

[deboluccia]

Are any of you guys actually attorneys?

 

[justalayman]

I was told verbally

who told you this?

I was told that the license agreement would not be binding--in fact, it's not-

is it a license or an easement? or did you understand what has since shown to be an easement was a license? In reality, it doesn't matter if the easement is documented in your deed.

.

I called the title company a few weeks after closing and was once again assured that the easements I saw on the title had nothing to do with the driveway.

have you called the title company back and spoke to them about this new revelation you have apparently discovered?

. I am unquestionably at fault for not having consulted a real estate lawyer at the time.

Not necessarily true. The title company is, or should be, a dependable source for interpretation of the title. That is what they do. Title insurance is issued based on their research so obviously the issuing insurance company is willing to bet millions of dollars on their research and interpretation.

but anyway, the title company is stating there is no easement for the driveway area?

On Saturday my neighbors blocked my access to my home for several hours with no forewarning and no apology

regardless of there being an easement or not, blocking the roadway is not allowed or acceptable unless the listed intent of the easement can somehow be construed to allow it. I doubt it could.

They consider my driveway their land.

well, I asked you to clarify the parties and their position in this and the language from the grant. So far, as I understand it, you are the servient tenant. The neighbors giving you problems are the dominant tenant. Still nothing on the specific terms of the uses permitted of the easement.

Are any of you guys actually attorneys?

I'm not.