Recourse to Unlawful Easement Deed?

[Zeusster]

NC
We inherited land from our deceased mother-party A. Party B was given easement by A to cross A's property in 2000. In trying to settle an easement dispute ourselves, with parties B & C, we realize that a deed of easement was given between B & C that includes crossing our inherited land. There is no recorded deed of easement from A to C. We have filed a separate Complaint because B & C have us landlocked behind them as well, but have not been assigned a court/ arbitration date at this time. We plan to amend the Complaint to include this issue if our last attempt to work it out through an easement for easement exchange with B & C is unsuccessful.
I contacted the attorney who wrote the deed, explained the situation, and requested documentation that A had granted this easement's inclusion in B to C's deed. His response was that he had no recollection of the 2005 deed and due to attorney client privilege he would speak only with an attorney if we had one and not me. He would only pull the file if B or C requested it of him. He offered no assistance or explanation as to why this was done. He said that if there was a mistake made, there was surely title insurance to handle it. No offer was made to look in the file for the requested documentation.

Can / should I file a complaint with the Bar?

How is a private citizen to contest a deed such as this?

Can we request an injunction to stop party C from using the easement, at least until the court date?

Thank you for any suggestions.

 

[Zigner]

NC
We inherited land from our deceased mother-party A. Party B was given easement by A to cross A's property in 2000. In trying to settle an easement dispute ourselves, with parties B & C, we realize that a deed of easement was given between B & C that includes crossing our inherited land. There is no recorded deed of easement from A to C. We have filed a separate Complaint because B & C have us landlocked behind them as well, but have not been assigned a court/ arbitration date at this time. We plan to amend the Complaint to include this issue if our last attempt to work it out through an easement for easement exchange with B & C is unsuccessful.
I contacted the attorney who wrote the deed, explained the situation, and requested documentation that A had granted this easement's inclusion in B to C's deed. His response was that he had no recollection of the 2005 deed and due to attorney client privilege he would speak only with an attorney if we had one and not me. He would only pull the file if B or C requested it of him. He offered no assistance or explanation as to why this was done. He said that if there was a mistake made, there was surely title insurance to handle it. No offer was made to look in the file for the requested documentation.

Can / should I file a complaint with the Bar?

How is a private citizen to contest a deed such as this?

Can we request an injunction to stop party C from using the easement, at least until the court date?

Thank you for any suggestions.

You will want an attorney.

 

[OK-LL]

"...I contacted the attorney who wrote the deed, explained the situation, and requested documentation that A had granted this easement's inclusion in B to C's deed. His response was that he had no recollection of the 2005 deed and due to attorney client privilege he would speak only with an attorney if we had one and not me. He would only pull the file if B or C requested it of him. He offered no assistance or explanation as to why this was done. He said that if there was a mistake made, there was surely title insurance to handle it. No offer was made to look in the file for the requested documentation."

A random attorney (meaning any attorney not paid by you) is under no obligation to provide you with any of his records or work product, and certainly not documents which can be obtained through public record. If A granted the easement's inclusion in B to C's deed, such grant would have to be in the public record to be effective. So you would be looking in the land records office for such a document.

 

[Zeusster]

"...I contacted the attorney who wrote the deed, explained the situation, and requested documentation that A had granted this easement's inclusion in B to C's deed. His response was that he had no recollection of the 2005 deed and due to attorney client privilege he would speak only with an attorney if we had one and not me. He would only pull the file if B or C requested it of him. He offered no assistance or explanation as to why this was done. He said that if there was a mistake made, there was surely title insurance to handle it. No offer was made to look in the file for the requested documentation."

A random attorney (meaning any attorney not paid by you) is under no obligation to provide you with any of his records or work product, and certainly not documents which can be obtained through public record. If A granted the easement's inclusion in B to C's deed, such grant would have to be in the public record to be effective. So you would be looking in the land records office for such a document.

We have searched extensively and no document exists. What should / could we do now?

 

[OK-LL]

Let me see if I'm keeping up an understanding of your situation:

A granted a written Easement to B to cross A's property.
B granted a written Easement to C to cross A's property.
There is no evidence that A granted a written Easement to C to cross A's property.
There is no evidence that A granted a written permission to B to transfer/assign B's Easement right in A's property to C.

As I was informed in an earlier thread, A's grant is apparently not transferrable/assignable by B to C.
Therefore, any document purporting to grant C an Easement across A's land is ineffective.
Consequently, A should have an action for trespass if C crosses A's land.

If C's use of A's land goes unchallenged for a statutory period of time, C may have gained a prescriptive right-of-way/easement on A's land (I have not looked up the statute to establish the length of time required).

 

[LdiJ]

Let me see if I'm keeping up an understanding of your situation:

A granted a written Easement to B to cross A's property.
B granted a written Easement to C to cross A's property.
There is no evidence that A granted a written Easement to C to cross A's property.
There is no evidence that A granted a written permission to B to transfer/assign B's Easement right in A's property to C.

As I was informed in an earlier thread, A's grant is apparently not transferrable/assignable by B to C.
Therefore, any document purporting to grant C an Easement across A's land is ineffective.
Consequently, A should have an action for trespass if C crosses A's land.

If C's use of A's land goes unchallenged for a statutory period of time, C may have gained a prescriptive right-of-way/easement on A's land (I have not looked up the statute to establish the length of time required).

There is one more quirk in the situation. A owns a parcel of land behind B and C that is landlocked, and apparently either B and C both, or just C don't want to allow a similar easement to A for ingress and egress for that parcel.

 

[Zeusster]

Let me see if I'm keeping up an understanding of your situation:

A granted a written Easement to B to cross A's property.
B granted a written Easement to C to cross A's property.
There is no evidence that A granted a written Easement to C to cross A's property.
There is no evidence that A granted a written permission to B to transfer/assign B's Easement right in A's property to C.

As I was informed in an earlier thread, A's grant is apparently not transferrable/assignable by B to C.
Therefore, any document purporting to grant C an Easement across A's land is ineffective.
Consequently, A should have an action for trespass if C crosses A's land.

If C's use of A's land goes unchallenged for a statutory period of time, C may have gained a prescriptive right-of-way/easement on A's land (I have not looked up the statute to establish the length of time required).

(transferable?) A's easement deed to B (given for $1.00) reads************** "convey unto the parties, their heirs and assigns, a perpetual non-exclusive easement for purpose of ingress, egress, and regress across parties of the first part described above, said easement being appurtenant to the land" and the description followed. Then it says " this easement is thirty feet in width and is intended to convey a perpetual right of way along the above described tract to the grantee's easement described in deed book************** TO HAVE AND TO HOLD said easement unto the parties of the second part, their heirs and assigns forever, and the parties of the first part do hereby warrant and covenant with the parties of the second part that they have the right to convey said easement free and clear of any liens or other encumbrances."

Correct me if I am wrong but I don't think this is transferable. B thinks they now own the land under the driveway, and repeatedly claims to have paid $3,000 for it. She actually had to pay A's attorney fees, survey and installation of her driveway. She tried to sue A for an easement of her choice, not wanting to accept one of the two routes offered by A.

(prescriptive easement?) We are vaguely familiar with the prescriptive easement but don't know the particulars. We inherited the property in 2007 in front of and also behind B and C. Since then we have been trying to gain access to the back property from them according to our deeds in which our grandmother described the direction of the easement and that it crosses B's tract to serve the 2 parcels in the back. B claims the easement is vague and therefore she will dictate the route she prefers- which is 700' in the opposite direction. We have asked to share her driveway - which includes A's easement and then crosses B and C. We would then add a 100' extension to the end of the driveway to access the back property. B & C adamantly refuse this, telling us to take them to court. Since 2007, we have expressed interest in our property and tried to get B & C to accept the easement on all of the heirs deeds as our ancestor intended. We have done this by paying the taxes, calling B & C, going to B's home to discuss the issue, surveying part of the property, and recently meeting in a library....all to no avail. We have consulted 2 attorneys (2012 & 2014) and paid one $1,500.00 who felt we would win the case, but charges $10,000 to go to court. These attorneys were aware of C not having easement but said to keep it as a last card, so to speak.

We are sending a letter offering B & C an exchange of easement across them for easement across us, with all parties sharing the single driveway and financial responsibility for it's maintenance. This would end the dispute and we could dismiss the Complaint we have already filed with the court. I'm ready for a judge or an arbitrator to tell us all what to do and make us all abide by it.

What does "challenging" C's use of our land entail?

Have we exceeded the statute of limitations?

Thank you so much for you advice.

 

[Dave1952]

(transferable?) A's easement deed to B (given for $1.00) reads************** "convey unto the parties, their heirs and assigns, a perpetual non-exclusive easement for purpose of ingress, egress, and regress across parties of the first part described above, said easement being appurtenant to the land" and the description followed. Then it says " this easement is thirty feet in width and is intended to convey a perpetual right of way along the above described tract to the grantee's easement described in deed book************** TO HAVE AND TO HOLD said easement unto the parties of the second part, their heirs and assigns forever, and the parties of the first part do hereby warrant and covenant with the parties of the second part that they have the right to convey said easement free and clear of any liens or other encumbrances."

It says that the party of the second part (B) may assign the easement to others (C). What's your question?

 

[Zeusster]

(transferable?) A's easement deed to B (given for $1.00) reads************** "convey unto the parties, their heirs and assigns, a perpetual non-exclusive easement for purpose of ingress, egress, and regress across parties of the first part described above, said easement being appurtenant to the land" and the description followed. Then it says " this easement is thirty feet in width and is intended to convey a perpetual right of way along the above described tract to the grantee's easement described in deed book************** TO HAVE AND TO HOLD said easement unto the parties of the second part, their heirs and assigns forever, and the parties of the first part do hereby warrant and covenant with the parties of the second part that they have the right to convey said easement free and clear of any liens or other encumbrances."

It says that the party of the second part (B) may assign the easement to others (C). What's your question?

I understand this to mean that B may sell the property and assign the easement to the purchaser, or if B passes the land to an heir, it is assigned to them, and B has use of the easement for guests. My question is, can B assign the easement to a neighbor C, D, E and so on? Does B have the authority to give A's easement to anyone?

 

[Dave1952]

Sorry but B can assign the use of the easement to C or D et c..