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Serving
Massachusetts Agencies

Reference in Conveyance Before Creation

Easements

The general rule is that mere depiction on a plan of an easement will not, in and of itself, subject the property to that easement.[1] The depiction of the easement is not enough; it must be created by recorded instrument. So, too, the creation of an easement over land after the land has been conveyed by deed or mortgage generally will no affect the land. However, there is a notable exception to these two rules, and it is found in Barnside Realty Corporation v. Coughlin, 661 N.E.2d 929 (1996). In Barnside the owner of property granted a mortgage on property to a lender in October, 1987, and the mortgage contained the notation, "Subject to proposed Right of Way for road access and utilities and to pass and repass without limitation as shown on a plan [name and date of plan]." The plan of the proposed right of way was not recorded and no easement had yet been recorded. In September, 1988 the owner granted an easement over the property to Coughlin and the easement was recorded on November 8 th of that year. Nine days thereafter Barnside Realty Corporation acquired the mortgaged premises from the lender by foreclosure.

The question in Barnside was whether Coughlin's easement in fact encumbered the property now owned by Barnside Realty Corporation, or whether the foreclosure by the lender had extinguished it. The land court ruled that the easement survived the foreclosure, and the Supreme Judicial Court agreed:

We agree with the Land Court judge's reasoning that the mortgage provision purporting to retain the right to create an easement lawfully reserved in the owner of the locus the right to create such an easement. The grant of the easement created an interest in land that was exempt from the mortgage. The plaintiffs had notice of the recorded easement that had been granted pursuant to the reservation, and the sale to the plaintiffs pursuant to the power of sale in the mortgage (G.L. c. 183, § 21 [1994 ed.] ) did not extinguish the easement. See Brooks v. Bennett, 277 Mass. 8, 15-16, 177 N.E. 685 (1931). Cf. Guleserian v. Pilgrim Trust Co., 331 Mass. 431, 436, 120 N.E.2d 193 (1954).

There is no reason why the security that the mortgagee bank received in the locus, as part of a business transaction, should not be subject to such limitations as the bank agreed to in advance. See Milton Sav. Bank v. United States, 345 Mass. 302, 306, 187 N.E.2d 379 (1963). The mortgagee's prior consent to the future creation of an easement over the mortgaged premises distinguishes this case from those in which a mortgagor unsuccessfully attempted to impose a servitude on mortgaged premises binding on the mortgagee without the mortgagee's consent. See New York Life Ins. Co. v. Embassy Realty Co., 293 Mass. 352, 355, 200 N.E. 3 (1936). The mortgage provision requiring the mortgagee's consent to creation of the easement was satisfied by the bank's approval specifically set forth in the mortgage itself.

Interestingly enough, the mortgage did not state that the owner "reserved" the right to create the easement after granting the mortgage, but simply stated that the mortgage was "subject to" the easement, where neither the easement nor the plan which showed it were not recorded. The easement, which the court characterized as having "been granted pursuant to the reservation," was in fact recorded before Barnside Realty Corporation had taken title from the foreclosing mortgagee, but it is wondered whether this is a crucial fact in the decision, inasmuch as Barnside Realty Corporation's title is directly derived through the lender whose mortgage contained this provision.

1 See Goldstein v. Beal, 317 Mass. 750, 59 N.E.2d 712. [Back to Text