Whenever a real estate lawyer draws up any sort of document, one of their biggest fears is creating what's called a perpetuity. This is a legal clause that effectively goes on forever because there's no language stating when it will ever end. American law abhors these sorts of arrangements, and real estate law produces more than its fair share of perpetuities compared to other branches of legal practice.
If you're dealing with real estate, you'll want to make sure that you avoid creating a perpetuity. Look at an example of a possible perpetuity, how to avoid these situations, and what a real estate attorney can do to remedy the problem if you run into one.
The Clause that Doesn't End
A classic type of real estate perpetuity is an easement. Someone owns a property, and they want to do a favor for a neighbor. Perhaps the neighbor needs to install an access road across the property to get to the rear portion of their own place.
To address this situation, the person whose property will be crossed draws up an easement. This transfers specific usage rights for that part of the property to the neighbor to allow them to build the access road.
Unfortunately, no one bothers to include a sunset or renewal provision in the deal. Consequently, the easement is permanent and even potentially transferable to the recipient's descendants or anyone who buys the recipient's place.
Avoiding Perpetuities
Ideally, whenever a real estate lawyer drafts an agreement, they go out of their way to consider potentially problematic scenarios. Sunset and renewal provisions make for an excellent start. If you're leasing mineral rights, for example, you might attach a clause limiting the usage to 5 years. You could also include contract options that allow the two parties to continue for a further 5 years on mutual exercise.
It's also a good idea to include provisions that make the agreement non-transferable. For example, you might want to force the next person who buys the adjoining property to negotiate a new easement just in case their planned usage is very different.
Curing the Title
Suppose you've encountered a perpetuity like the dreaded forever easement. The solution is to try to cure the title. A cure is a petition asking the court to remove the language of the agreement from the property title. You may seek a cure if, for example, the structure the neighbor was traversing the property to get to is now gone.
Contact a local real estate lawyer to learn more.
