In its recent opinion in Burdette v. Brush Mountain Estates, LLC, the Supreme Court of Virginia held that a reference to an easement on a plat does not -- without more -- bind the successor in interest to the servient tract.Burdette was decided on September 18, 2009, and you can read the full opinion by Justice Kinser here.
The decision has put the real estate and title insurance communities on notice that the Court requires, for the creation of an enforceable easement, a deed or other "instrument of conveyance" with valid "words of conveyance."
The decision has put the real estate and title insurance communities on notice that the Court requires, for the creation of an enforceable easement, a deed or other "instrument of conveyance" with valid "words of conveyance."
------
In 1999, Kelly Burdette purchased 8 acres in Montgomery County, Virginia fromThomas and Margaret Davis. Brush Mountain Estates, LLC owned an adjacent parcel.
(For those unfamiliar with Virginia geography, Montgomery County is south of Roanoke and is the county in which Blacksburg is located. For those unfamiliar with Virginia sports, Blacksburg is the hometown of the football team that's off to a strong start, while Charlottesville's team is struggling mightily. Keep the faith, Cavalier fans -- it's only October 2.)
Burdette's deed from the Davises contained, in the description of the property being conveyed, a reference to a plat. The deed also contained standard, boilerplate language that the conveyance was made "subject to all easements, reservations, restrictions and conditions of record affecting the property."
The referenced-plat, which was signed by the Davises and Brush Mountain Estates, included a note that stated "50' private easement for ingress, egress, and public utility for the benefit of [the property owned by Brush Mountain Estates] is hereby conveyed."
Notwithstanding the note on the plat, Burdette argued that she should not be bound by the 50' easement because the Davises had not granted it by a deed or other valid instument of conveyance. Brush Mountain Estates countered that the conveyance was accomplished by the combination of the reference to the plat, the general "subject to" language, and the note on the Plat which purported to convey the easement.
Burdette's deed from the Davises contained, in the description of the property being conveyed, a reference to a plat. The deed also contained standard, boilerplate language that the conveyance was made "subject to all easements, reservations, restrictions and conditions of record affecting the property."
The referenced-plat, which was signed by the Davises and Brush Mountain Estates, included a note that stated "50' private easement for ingress, egress, and public utility for the benefit of [the property owned by Brush Mountain Estates] is hereby conveyed."
Notwithstanding the note on the plat, Burdette argued that she should not be bound by the 50' easement because the Davises had not granted it by a deed or other valid instument of conveyance. Brush Mountain Estates countered that the conveyance was accomplished by the combination of the reference to the plat, the general "subject to" language, and the note on the Plat which purported to convey the easement.
The Supreme Court of Virginia held for Burdette.
According to the Court, the plat, and the note thereon, do not constitute an "instrument of conveyance" and valid "words of conveyance" (although the Court also held that a deed is not statutorily required in order to convey a binding easement, since an easement is not an "estate" governed by Code of Virginia Section 55-2).
Unfortunately, the Court does not provide a thorough explanation of why the phrase "easement ... is hereby conveyed" on the Plat note does not suffice as the operative conveying-language.
Our take-away from Burdette is that the Court wanted a "bright-line rule" regarding the ability to convey an easement by a plat alone, and in Burdette the Court has articulated such a rule: a plat notation, alone, is insufficient to convey a binding easement.
