Merger and Resubdivision, must show former easements?

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Elias French
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Merger and Resubdivision, must show former easements?

Postby Elias French » Mon Apr 22, 2019 8:23 am

Good morning all,

We are preparing a Parcel Map for Merger and Resubdivision of two lots into one lot for a 100+ unit condominium project.. An easement for Ingress & Egress exists of record over one lot for benefit of the other. The lots are now under common ownership. Is it necessary or desirable to show this easement on the Parcel Map? My understanding is that the easement was extinguished by "doctrine of merger" once the lots came under common ownership, and therefore should not be shown on the parcel map at all.

The alternative would be to show the easement graphically and label it "to be extinguished", similar to how the existing lot line is labelled "to be removed" on the Parcel Map. It is suspected this option is preferred by the reviewing agency, Title Co., etc....

Your thoughts are appreciated.

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Warren Smith
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Re: Merger and Resubdivision, must show former easements?

Postby Warren Smith » Mon Apr 22, 2019 11:46 am

This is/was a private easement and, indeed, was extinguished upon common ownership of the dominant and servient tenements.[Civil Code section 811]

811. A servitude is extinguished:
1. By the vesting of the right to the servitude and the right to the servient tenement in the same person;
2. By the destruction of the servient tenement;

In any event, the filing of the parcel map will certainly "destroy" the servient tenement.
Warren D. Smith, LS 4842
County Surveyor
Tuolumne County

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Elias French
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Re: Merger and Resubdivision, must show former easements?

Postby Elias French » Wed Apr 24, 2019 12:16 pm

Thank you,

This is very helpful, and I agree with you that in the end, if the goal is to "destroy" the easement the map will certainly do so by merging the dominant and servient tenements.

I believe the Title Co. and reviewing agency would prefer to see the easement shown on the face of the map and labelled "to be removed", but it seems that doing so in this case is not necessary. My general experience is that Title Co.'s, not without reason, are reluctant to acknowledge that an easement has been extinguished by 'doctrine of merger', and prefer to see a recorded document or some sort of paper trail (in this case a map) terminating such an easement before they will acknowledge it has been extinguished.

-Dave Ryan-
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Re: Merger and Resubdivision, must show former easements?

Postby -Dave Ryan- » Thu Apr 25, 2019 8:22 am

Adding a note about the "prior" easement rather than putting it graphically on the map seems like the way to go. A title company by the very nature of their business is typically very cautious and shouldn't be driving whether this is shown as linework or not. Especially since there seems to be no question it will go away. Cite the prior documentation that created it and the code that extinguishes it. then you have the history and move on.

Dave Ryan
Arcata, Ca.

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mpallamary
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Re: Merger and Resubdivision, must show former easements?

Postby mpallamary » Thu Apr 25, 2019 11:23 am

If I am not mistaken, there is a provision under the SMA that addresses this and how to do it on the map. I am too busy to track down at the moment but will if I get some time. It is a relatively recent amendment to the SMA as I recall.

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subman
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Re: Merger and Resubdivision, must show former easements?

Postby subman » Thu May 16, 2019 7:33 pm

Just use the AutoCAD “Explode” command and click on the lines. My attempt at surveying humor.

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land butcher
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Re: Merger and Resubdivision, must show former easements?

Postby land butcher » Fri May 17, 2019 4:39 pm

subman wrote:Just use the AutoCAD “Explode” command and click on the lines. My attempt at surveying humor.


LOL

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Peter Ehlert
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Re: Merger and Resubdivision, must show former easements?

Postby Peter Ehlert » Fri May 17, 2019 10:30 pm

Elias French wrote:Thank you,

...snip... I believe the Title Co. and reviewing agency would prefer to see the easement shown on the face of the map and labelled "to be removed"...snip.

How about making a bit more clear for the future worry warts.

include in the owner's signed statement on the face of the map something like "as owner of Lot XX I abandon and relinquish any interest I may have in the easement ZZZ"
Peter Ehlert


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