In my last post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I discussed exceptions and reservations under Subsection (b) of that statute, which exempt conveyances from the law's operation. But, what are exceptions and what are reservations in deeds?
"The operation of an exception in a deed is to retain in the grantor some portion of his former estate, which by the exception is taken out of or excluded from the grant; and whatever is thus excluded remains in him as of his former right or title, because it is not granted. A reservation . . . vests in the grantor in the deed some new right or interest not before existing in him." Ashcroft v. Eastern R. Co., 126 Mass. 196, 198 (1879). The distinction between reservations and exceptions was further explicated by the Supreme Judicial Court in McDermott v. Dodd:
In determining whether a particular form of words constitutes an exception or a reservation, little reliance can be placed upon the use of the word reserve or the word except. When the effect of the words is to create in the grantor some easement not before existing, the result is a reservation. But to constitute an exception the easement need not have had a legal existence before the deed. It is sufficient if it exists in fact on the surface of the ground, even though at the time of the deed all the ground is owned by one person.
326 Mass. 54, 56-57 (1950) (citations omitted). In either case, however, it is the grantor who retains or is granted an interest in the estate otherwise conveyed to the grantee. This distinction, nevertheless, historically had legal significance.
"Prior to 1912 [and the adoption of G. L. c. 183, § 13] the distinction between an exception and a reservation of an easement in a conveyance was critical in determining whether the easement survived the grantor's death. An easement is excepted from the conveyance if the right or interest existed prior to the conveyance. An easement excluded from the conveyance remains with the grantor in fee and, therefore, survives him or her." Hamilton v. Myerow, 17 LCR 674, 676 (Misc. Case No. 303223) (Oct. 13, 2009) (Trombly, J.) (citations omitted). In contrast, "[a]n easement is reserved from the conveyance if the right or interest is a 'new right or interest not before existing in [grantor].' Such a new right does not survive the grantor without words of inheritance accompanying the reservation." Id., quoting Ashcroft, supra (citations omitted). As previously stated, "[t]he use of the terms "except" or "reserve" in the grant is not determinative. Instead the test is what effect the language has: whether to exclude an existing right from conveyance or vest a new right in grantor." Hamilton, supra, citing McDermott, supra (citations omitted).
Thus, these cases hinge upon what was on the ground prior to the severance of the common estate by the grantor, i.e., whether the grantor historically used a pathway over his land subsequently conveyed to reach the retained portion of his property. In such case, even if he used the word "reserve", the grantor would have excepted the fee interest in the way by "reserving" this existing passage way in the deed. If there were no evidence of such historic use, as in Hamilton, supra, then an easement would be reserved, and not the fee interest in the right of way excepted.
Without the use of words of inheritance, the reservation of an easement prior to the adoption of § 13 had the effect of reserving for the grantor a personal right, rather than a right that runs with his land. See McDermott and Hamilton, supra. Such a use right would thus terminate upon the death of the original grantor who reserved the interest. See id. As these cases demonstrate, although § 13 was adopted in 1912, these questions and disputes still arise today, given how important historic conveyancing can be for present-day owners of real estate in this Commonwealth. Even obscure and antiquated conveyancing concepts can matter.
Written Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.
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