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Large easement on property we wish to purchase

Bolton, MA |

My husband and I are looking to buy a property in Bolton, MA that has an easement of over 6,000sq feet that was created for the neighbor by the previous owner of the property now for sale. The house went into forclosure and was purchased by the current owner (who was not the one who granted the easement). I thought that easements become void if the land is forclosed on. Is this correct? if not...what can we do to terminate the easement? We don't want to pay such high taxes on land we can't use or build on. They apparently can come across the land, build storage sheds, but it's not any more clear as to why it was created.

Attorney Answers 3

Posted

Whether the easement continues to burden the land would depend on the specific language of the grant of the original easement. If by its terms it is an easement that runs with the land, a subsequent foreclosure would not by itself extinguish the easement and it would continue to affect the interest of any subsequent owner of the property. The foreclosing bank might possibly have had an argument that the easement was invalid if it was recorded after their mortgage and the bank did not consent to it and felt it diminished the value of the property, but since they have already sold the property to the new, current owner they would not have a reason to pursue that. Absent some language in the easement that allowed for it to be terminated on sale or foreclosure, the only way to remove it would be by agreement of the neighbor who owns the easement rights over the property.

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Posted

Hello:

The answer to your questions depend in large part upon the kind of easement and how it was created. If it is a deeded easement that clearly and explicitly describes the terms of use by the dominant tenement (the easement owner), then it seems unlikely that a foreclosure action would extinguish such and easement.

There may be an argument that such a grant may be invalid as in violation of a convenant of the mortgage, but more likely the grant of such an easement would simply justify acceleration of the balance of the mortgage loan, thus triggering foreclosure proceedings if the mortgagor is unable to pay the balance of the loan on demand.

If it is true that the easement has been deeded and remains valid, then extinguishing the easement would most likely be a matter of contract between owner of the servient tenement (the current owner of the land burdered by the easement) and the dominant tenement. In other words, the parties would need to strike a bargain and arrange for a sale of the easement "back" to the servient tenement. So the current owner could arrange to buy those rights back from the easement holder prior to selling the property to you. Perhaps you could sign an Agreement for Purchase and Sale with the current owner, with a condition that the current owner arrange to purchase those rights back from the easement holder (dominant tenement). It may work, in a practical sense, if the sale of the easement "back" to the servient tenement occurs at the closing of your purchase- that way, the seller could use funds from the sale to pay the cost of buying the easement. The deed of the easement rights could be recorded just prior to the deed conveying the property to you, so that the title would be cleared of the easement prior to your taking title.

The above scenario would depend upon the willingness of the dominant tenement holder to negotiate and sell back the easement rights. It is worth having a discussion with the seller to examine whether such a deal is possible.

If you can't convince the seller to negotiate the re-purchase of the easement rights prior to your purchase of the property, then you may want to reconsider purchasing this land. Once you have purchased the property, if the existing easement is legally valid and still encumbers the property, then you will not have much leverage to negotiate with the dominant tenement.

Feel free to call (857) 204 3864 to discuss.

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Posted

The other two answers are on point. One other possibility might be exploring with the neighbor whether they are willing to limit the easement in a material way which would leave an acceptable burden on your future property. If you haven't signed an Offer to Purchase, you'd clearly like to get this sorted out ahead of time, and or put a contingency in your OTP to address this. If you've signed an OTP without being aware of the easement (and assuming it does materially affect the parcel such that it is not worth nearly the contract price) then you may have a way out. Good luck!

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