If a deed grants the fee of one lot (Lot "A") to a person and the same deed grants or otherwise creates rights, such as an easement or restriction, for the benefit of the grantee of Lot A over another parcel of registered land (Lot “B”) owned by the same grantor, registry personnel should check the outstanding certificate of title to verify that the grantor does in fact own Lot B and the deed creating the rights must be noted on the encumbrance sheet of Lot B. Said deed should be noted on the Memorandum of Encumbrances attached to the certificate of title covering Lot B as a deed of Lot A with restriction or a deed of Lot A with easement (or other appropriate notation).
The same deed should be noted as an appurtenant right on the face of the certificate of title to be made up for Lot A.
If the owner of Lots A and B (both registered) conveys Lot A, retains Lot B and reserves an easement or other rights over the granted land (Lot A) for the benefit of Lot B, such reservation should be noted as an encumbrance on the Memorandum of Encumbrances of the new certificate of title in the name of the grantee of Lot A and should be noted on the Memorandum of Encumbrances attached to the certificate of title for Lot B as a deed of Lot A with easement, covenant or restriction. When making up the next certificate of title for Lot B, registry personnel should include on the face of the new certificate, the appurtenant right (easement, restriction or covenant) created for the benefit of Lot B in the deed of Lot A. However, this appurtenant right should only be included on the face of the certificate of title to issue if all the mortgagees of Lot A subordinated their interests as mortgagee or consented to the easement, covenant or restriction.
If the Owner of Lot A grants to the owner of Lot B (both registered) an easement, covenant or restriction for the benefit of Lot B, such grant should be noted as an encumbrance on the Memorandum of Encumbrances for Lot A and should also be noted on the Memorandum of Encumbrances for Lot B. When the next certificate of title is made up for Lot B, this appurtenant right should be included on the face of the new certificate of title to issue as long as the mortgagees of Lot A subordinated their interests as mortgagee or consented to the easement, covenant or restriction set forth in the grant to Lot B.
A grant of easement, restriction or covenant from the owner of an unregistered parcel to the owner of a registered parcel which easement, restriction or covenant runs over or burdens unregistered land, should be accepted for filing and noted on the Memorandum of Encumbrances as easement, restriction or other identifying notation . Said appurtenant right should not be noted on the face of the next certificate of title to be issued without the filing of a Supplemental Petition.
A deed which grants a fee to Lot A and an easement over the same locus to Lot C is a nullity as far as the easement is concerned if the owner of Lot C is a stranger to the title (that is, neither grantor nor grantee). The easement must be created by a separate instrument.
Note to practitioners: We encourage attorneys who are preparing deeds that include restrictions, easements, covenants or similar matters to highlight the rights created or reserved in the deed and to entitle the instrument “Deed With Restriction”, “Deed With Easement” or other appropriate caption. This will help registry personnel to enter the instrument on the Memorandum of Encumbrances.
See also Guideline 7. Attorney’s Proposed Form of New Certificate.