Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the June 16, 2016 mailing of "Constructive Notice":

"Handshake" Easement Upheld

On the closing date, no recorded beach access easement burdened the first lot sold in a 100-lot subdivision. The buyer and developer, however, had a “‘handshake’ on the existence of the easement….” The deed recited it was “subject to all utility and other applicable easements … which may be recorded in the future with respect to the [subdivision].” Thirteen days later, a revised site plan (depicting the easement) was recorded. Later, additional declarations and plans concerning the easement were recorded in the land records. Everything went smoothly for the next nineteen years, until the second owner brought suit.

The deed to the second owner expressly recited the existence of the easement. He had actual notice of the easement, as well as constructive notice of all the recorded documents. Nevertheless, he argued the original “handshake” was insufficient to either reserve or grant to the developer the power to create an easement benefiting all the remaining lots.

The Court agreed that more explicit language than was used in the first deed would be needed to reserve the right to unilaterally create "any and all" easements after the property was conveyed. Relying on testimony from both the developer and the first buyer, however, the Court used the handshake to hold the conduct of the parties indicated the deed language was intended to create the easement. This reasoning sidesteps the statute of frauds because the easement is deemed to have been created by the deed. Lynn v. Wentworth By The Sea Master Association, #2015-333, New Hampshire Sup. Ct. (May 27, 2016).


Of course, the “future” language in the deed is not “ambiguous,” (which means having two different meanings), it is merely very wide in scope. While paying lip-service to the “wholesome doctrine of the ancient rule that effect, if possible, is to be given to every word,” the Court finds “the deed is ambiguous as to what the parties intended” to rewrite the deed, while avoiding what it deems the “absurd result” of an unlimited right to create future easements.