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Easements Easements Everywhere! Passing, repassing, appurtenant water rights?

November 9, 2009

Easements Easements Everywhere! Passing, repassing and appurtenant water rights?

Easements everywhere

I was doing some research today for a property (which I will call property A) clients of mine are interested in. There is a “shared well”, the property listed for sale (property A) gets its water from the property next door (Property B). There is an easement which grants the property owner rights to the water from the well on the property next door. Easements run with the land and the rights transfer to each property owner. Property A also has an easement to “pass and repass” from Property C (another neighbor) as the beginning of their driveway is not on their land.

The deed for property A states “Together with the right to pass and repass at all times and for all purposes over a Right of Way more particularly shown on the aforementioned map leading in a generally westerly direction from the premises described to Town Highway known as XXXXX Rd.”
“Together with all appurtenant water and pipeline rights and SUBJECT TO water and pipeline rights as shown on the aforementioned map and rights granted in a deed from (previous owner of property B) to (previous owner of property A) dated August 7, 1984 and recorded in Volume XXX, Page XXX of the New Milford Land Records.”

The deed for property B states “Together with the right to take water through an existing pipeline located on land of the Grantors lying to the north of said premises being Parcel A as shown on the aforementioned map.”
“Reserving unto the Grantors, their heirs and assigns, the right to pass and repass at all times and for all purposes from Town Highway knows as XXXXX Rd in an easterly direction over a “Right of Way” as shown in said map in order to obtain access to Parcel A.”

Shared wells happen, I will suggest to our attorney that wording be inserted in the new deed to reflect the nature of the obligation to repair the well should there be any problems with the pump, water quality, etc. Simple enough, I checked with my trusty real estate attorney friend today on this. (Everyone needs a real estate attorney friend). But what bothers me about the above is that Parcel B has been given the right to pass and repass on the driveway of Parcel A, and this right will remain with the current owners, their heirs and assigns. Now that is just silly. We will need to have that removed from their deed before the property closes.

There are more water issues, there is an abandoned well at the far end of Parcel A, which at one time fed water to another house on another road, there is apparently an easement for this on Parcel A and this unknown home. I found this little problem on a map and will have to find the exact house in order to find out if indeed there is a deeded water right to this unknown house. If it is true, the current owner of property A will need to remove this off the unknown owners deed in the form of a quit claim.

When you are purchasing property, prior to making an offer your Realtor® should be going to town/city hall and checking deeds, maps, as-builts (septic installation plans), well completion reports, water reports, checking the building department for any open permits, checking C/O’s for new work that has been done, anything that may be pertinent to the offer. You don’t want to leave any surprises to the end of the sale that can blow the deal up! And you don’t want to count on information coming from the seller, they may not fully understand the impact of easements as it relates to YOUR purchase of the property!

If we do write up an offer to purchase, I will be putting contingencies in the offer to purchase about the above mentioned easements, that they be removed, remedied prior to the sale of the home. That way there are no surprises, the seller, buyer and their attorneys will be on the same page from day one. And tomorrow I will be at town hall digging through property owners to find the mystery property that has the water rights to the abandoned well! I am afraid it may be with a property that is currently in a “sale pending” category which may complicate matters a tad, but I do love a puzzle. Last I saw my clients they were bit in the “Bambi caught in the headlight” mode with all the legal language flying around!

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