When a Deed of Conveyance or a Deed of Subdivision references an easement on an attached plat, this does not necessarily mean that an easement over a parcel of real property has been created. This is what the Supreme Court of Virginia has now twice held in the past five years. The Commonwealth’s high court has addressed the issue of the creation of an easement by a plat that contained no operative words of conveyance sufficient to demonstrate the manifest intention to grant an easement in the case of Burdette v. Brush Mountain Estates, LLC, 278 Va. 286 (2009) and most recently in the case of Beach v. Turim, 2014 Va. LEXIS 27 (2014).
An easement is the privilege to use the land of another in a particular manner and for a particular purpose. One particular form of an easement is an “express” easement whereby the easement rights are clearly stated in the operative instrument. Operative language is needed to create the easement and such language must be specific. The language must clearly identify the lots that will benefit from and be burdened by the easement as well as a well-defined purpose. Easements need not be created by a deed or will, but there must be some language of actual conveyance in a written instrument.
In the 2009 case of Burdette v. Brush Mountain Estates, LLC, a deed conveying property stated that the conveyance was “made subject to all easements, reservations, restrictions and conditions of record affecting the hereinabove described property.” Burdette, 278 Va. at 289. The plat attached to the deed showed a 50-foot easement with the language “50’ PRIVATE EASEMENT FOR INGRESS, EGRESS AND PUBLIC UTILITY FOR THE BENEFIT OF Tax Parcel 27(a)40 [the appellee’s parcel] . . . IS HEREBY CONVEYED.” Id. at 290. The question was whether Virginia Code Section 55-2, which requires that estates in lands be conveyed by a deed or will, applies to conveyances of easements, and whether the notes on the plat were sufficient to create an easement despite lack of language of conveyance in the deed. Id. at 288
The Supreme Court of Virginia held that the “subject to” language of the deed failed to mention a specific easement or plat. Id. at 296. Additionally, the size of the lot where the easement purportedly existed was not identified in the plat. The plat mentioned a 50-foot easement across a lot that was not included in the survey and was only referred to as Tax Parcel 27(A)40. Id. at 296-97. Therefore, one could not determine “the extent of the burden imposed on the servient estate.” Id. at 297.
In holding that there was no easement, the Burdette court noted that “the ‘subject to’ language in the deeds operates only as a phrase of qualification and notice and does not create affirmative rights.” Id. at 297 (internal citations omitted) (emphasis added). The ‘subject to’ language did not even mention the plat or the easement language within it. Id. Therefore, the plat couldn’t be the instrument of conveyance in that case.
The Burdette rationale was revisited this past February in the case of Beach v. Turim. Again, the Supreme Court of Virginia considered the question of whether an express easement is created when the deed merely references a plat and states “easements are hereby created as shown on the attached plat.” The court held that the easement did not exist because “merely identifying the location of an easement, or the burdened estate, is not sufficient to create an express easement.” Op. at 8. Language of actual conveyance is needed.
In the Beach case, the scenario involved two parties who owned homes in a subdivision. The Plaintiffs sued their neighbor for blocking their access to an easement which was a walkway that began on the neighbor’s property and abutted the Plaintiffs’ property.
The subdivision was originally created by deed of subdivision in June 1960. The deed states that “easements are hereby created as shown on the attached plat.” The subdivision plat attached to the deed showed a 4 foot private walkway through 9 lots, including the neighbor’s lot, but not including the Plaintiffs’ lot.
The court stated that the deed failed to identify to whom the easement was granted and the purpose of the easement was ambiguous. The location for the easement was stated, but not the identity of the grantees of the easement which is required so that they are “distinguished from all others.” Op. at 7, quoting Corbett v. Ruben, 223 Va. 468, 472 (1982). The court determined that the language in the deed that says “easements are hereby created as shown on the attached plat” was insufficient to create an easement.
The Beach court cited Burdette for the principle that, in order to create an express easement, there must be an instrument of conveyance that contains operative words of conveyance sufficient to demonstrate the manifest intention to grant an easement. Op. at 6. “When a deed incorporates a plat by reference, the plat is considered part of the deed itself but only for descriptive purposes to establish the metes and bounds of the property being conveyed.” Burdette, 278 Va. at 298. In Burdette, the Supreme Court of Virginia decided that no particular words are required, so long as the intention to grant is so manifest on the face of the instrument that no other construction could be put upon it. Op at 6, quoting Burdette, 278 Va. at 297-99. And, to create an express easement, there must be an instrument of conveyance. Id.
From a practical perspective, the Beach and Burdette cases have taught us when an easement has been attempted to be created across real property, one should not assume the validity of the easement by its mere reference. Whether a landowner is asserting the rights to an easement across another’s real estate or a landowner is preventing access across its parcel, either party must pay particular attention to not only the location of the easement on the plat but also the operative language contained in the applicable instrument of conveyance.
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