July 23, 2018

Oftentimes, the standard quitclaim deed is the document utilized by many document preparers when endeavoring to eliminate of record a recorded easement. But, is a quitclaim deed executed by the owner of the dominant tenement in favor of the owner of the servient tenement always the most effective tool to accomplish the task at hand?

What if the document, which created the easement (source document), failed to identify the dominant tenement? What if the creating document failed to identify both the easement route and the dominant tenement? Worse yet, what if such document was recorded 50 years ago, and, it is unlikely that anybody today or 50 years down the road will be able to recognize the connection between the original grantors and grantees and the present parties to the quitclaim deed?

In other words, is there a better tool for eliminating of record an easement, which was created by a poorly crafted source document, than a standard quitclaim deed? And, is there a better tool than a standard quitclaim deed for eliminating of record a well prepared source document?

First of all, yes, it’s true, a quitclaim deed will certainly eliminate of record all right, title and interest of the grantors in and to the land of the grantees. But who will be able to determine the identity of the property of the grantors of the quitclaim deed other than the parties to the document. And, if such quitclaim deed fails to identify the recording information for the source document, how does anybody truly know what type of interest is being quitclaimed by the grantor of the quitclaim deed? And, what if the party releasing an easement interest is also the beneficiary of covenants and conditions, which encumber the property encumbered by the easement?

Thus, a better approach for effectively quitclaiming the easement would be to compose a document, which paints the complete picture of the intent of the parties. Such a document would do the trick whether the source document is poorly crafted or beautifully composed.

A. The Ticket

We recommend that a document be prepared for purpose of eliminating a recorded easement (release document), which sets forth the following:

1. The connection between the parties to the release document and the grantor and grantee of the source document. For example, the release document could state that “the grantors herein are successors in interest to all of the property that was the dominant tenement for the easement rights being quitclaimed herein” and “the grantees herein are successors in interest to all of the property originally burdened by the easement rights being quitclaimed herein”. Or, if the source document established an easement of record for the benefit of several different properties owned by several different owners, but the purpose of release document is to free the servient tenement property of the easement burden for the benefit of only one specific dominant tenement property (not all), please be sure to add the appropriate language to assure that such objective is understood. Otherwise, it is likely that a title insurer or potential purchaser might misinterpret the release document.

2. A description of the property belonging to the party quitclaiming the easement (being the dominant tenement, or, perhaps, that portion of the dominant tenement relinquishing use of the easement) and a description of the property belonging to the party who is the grantee of the release document (being the servient tenement or that portion of the servient tenement being released from the burden of the easement).

3. The purpose of the release document.

4. The recording information of the source document.

5. The description of the easement rights being extinguished. If you are eliminating all easement rights as set forth in the source document, be sure to be clear with your language. It is always wise to simply quote the exact language described in the source document.

Oftentimes the author of the language describing the easement rights being released will either abbreviate or change the language of the released easement rights. Such an approach makes it very difficult for future readers of the release document to understand the intent of the author. For example the original language of the easement may have been “an easement for ingress, egress and driveway purposes” and the release document may have described “a driveway easement”. Did the author of the release document intend to eliminate the ingress and egress rights?

6. In the event that the party quitclaiming the easement enjoys other rights which burden the servient tenement (for example, a height limitation restriction), which the grantor wishes not to relinquish, be sure to add the appropriate language to make it clear that such rights are not being quitclaimed by such document.

Attached is a sample template for a plain vanilla version of a release document.

B. Suggested Preliminary Steps

The most important starting point is to obtain a copy of the recorded source document and to study it carefully. During your review of the document you will certainly want to determine if one or several easements were created by such document. Likewise, you will want to determine if the easement serves one or several dominant tenement properties. Additionally, it will be important to determine if such document established other rights, which burden the servient tenement and benefit the dominant tenement. For example the source document may have established of record both a driveway easement over the servient tenement and a height limitation restriction on future improvements to be constructed on the servient tenement. If so, as mentioned above, you will need to be particularly careful with the language you use in your release document so that you do not inadvertently eliminate of record the height limitation restriction with your release document.

Please be aware that is possible that the owner of the dominant tenement may enjoy other rights encumbering the servient tenement, which were established of record by documents other than the source document. So, it is wise to determine if the objective of the parties to the release document is to eliminate a very specific right burdening the servient tenement, which serves the dominant tenement, or, if the objective of the parties is to eliminate all rights which burden the servient tenement in favor of the dominant tenement.

In short, be diligent in gathering the information you will need in order to prepare an effective release document. If the source document fails to identify a dominant tenement, please be sure to complete the necessary research to identify the property owned by the grantee named in the source document as of the date of the recording of the source document. As discussed above, it is possible that the owner of the dominant tenement property might enjoy rights other than easement rights, which encumber the servient tenement, which were created either by the source document or by other recorded documents. So, it will oftentimes be wise to research the servient tenement property for the purpose of discovering all rights that encumber the servient tenement for the benefit of the dominant tenement.

C. Eliminating of Record an Unrecorded Easement

If for some reason you wish to eliminate of record an easement that is not established of record you accomplish such a task with the following steps:
1. In addition to identifying the parties to the document, be sure to identify the properties of the parties to the document (the dominant and servient tenement properties).

2. Set forth that the purpose of the release document is to quitclaim and eliminate of record a specific unrecorded easement. For example the purpose of the release document is to quitclaim and eliminate of record any all rights to use the existing dirt path that passes over the servient tenement parcel and adjoins the boundary line of the dominant tenement property.

3. In the event that the party quitclaiming the easement enjoys other rights which burden the servient tenement (for example, a height limitation restriction), which the grantor wishes not to relinquish, be sure to add the appropriate language to make it clear that such rights are not being quitclaimed by such document.

D. Some Thoughts to Keep in Mind when Preparing Release Document

As discussed above, in order to prepare an effective release document it makes good sense to identify the parties to the document and their relationship to the parties to the source document, the properties impacted by the document, the purpose of the document, the recording information of the source document and the rights being eliminated. Additionally, under certain circumstances, it will be necessary to identify certain rights which are not being eliminated by the source document.

Most importantly, keep in mind that somebody is going to be reading and attempting to comprehend the meaning of your document 50 years from now. Therefore, your goal should be to compose a document that will make as much sense in 2064 as it does today.