This morning I had the privilege of spending time with Carl Jorgensen of WFG National Title Insurance in a presentation to real estate agents. Carl is a personable, professional person. He’s very knowledgeable in his field.

At any rate, we got into an interesting area of easement laws: Merger.

Merger occurs when the servient (i.e. burdened) and dominant (i.e. benefited) estates become owned by the same person. When this happens, the easement is no longer needed because the owner has rights over both.

But as an attorney I of course couldn’t leave well enough alone. I provided a hypothetical.

What happens if the owner of the servient estate purchases the dominant estate, but he or she doesn’t record that the easement has been merged and subsequently sells to another person?

Carl indicated that this situation doesn’t happen too often, but that the purported dominent owner would not legally have the easement which appears to still be recorded.

Yet talking it out further, if as in this scenario it was a road which served as the only access to the purportedly dominant estate, the title insurer would go in and clean up the issue.

If the purported servient estate holder doesn’t act reasonably, the title insurer would come down on them with a law suit in a last claim effort of an easement by necessity.

And while I don’t have a shred of case law in front of me at this time, guess who would win … Yes, you guessed it. The title insurance company. They do produce value beyond just allowing you to get your house financed.