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tried to send copy of affidavit but site won't let me! I have a couple of follow ups on my original question and would like them answered before I give you your deserved high rating. Please advise on how to get the copy of the affidavit to you. I want to know if it is as damaging to the seller as I think it is?
Okay. I guess my first concern with the affidavit is that it could be argued that it was created solely for the consideration of the Title Insurance Company so that they would agree to sell me an "Owner's Title Policy". To me, a sworn written statement is a sworn written statement and the answers given should be subject to scrutiny if they contradict reality. So, question #1 is whether or not the sworn statements of Seller can in any way be ignored just because they were used to limit the exposure of the title insurance company?
#2 is my understanding of the terms "subject to" and "granted an" accurate when it comes to the easement? I believe that since I own the property that is granted the easement, it trumps the other properties with regard to using the parking lot. The language in the easement is a bit vague because it relied more on the engineers drawing that was attached to the recorded easement and set forth the lines of the "macadam parking lot". In looking at the drawing, there is no doubt what was intended by the easement.
#3 There are some specific statements on the sworn affidavit that are completely false. They are:
a) our enjoyment thereof has been peaceable and undisturbed and the title to said property has never been disputed or questioned to our knowledge, nor do we know of any facts by which title might be questioned and/or disputed or by reason of which any claims to any of the said property might be asserted adversely. My take: their enjoyment was anything but peaceable and undisturbed and there were multiple disputes and questions regarding the title. Not only that, but the Seller received threats from the neighbors and letters from lawyers claiming sole ownership.
b) no party other than the affiants is in possession of all or any portion of the above described under any unrecorded leases, tenancy at will or otherwise. My take: Both neighbors were in possession of a portion as tenants at will.
c) the Sellers have conveyed no portion of the property or done any act or allowed any act to be done which has changed or could change the boundaries of the property. My take: The Sellers never challenged the claims of the neighbors nor did they disclose those claims to me. Therefore, they fueled the fire by which the neighbors felt empowered to take a more aggressive stance.
d) the Sellers have allowed no encroachments on the property above described by any adjoining landowners nor have the undersigned encroached upon the property of adjoining landowners. My Take: The Sellers knew of encroachments and hid them from me and those encroachments were by none other than the adjoining landowners.
e) the Sellers have allowed no easements, rights of way, continuous driveway usage, drain, sewer, water, gas or oil pipeline, or other rights of passage to others over the property above described and has/have no knowledge of such adverse rights. My Take: The Sellers not only allowed rights of way and driveway usage but took steps to hide that fact from me. So, they had first-hand knowledge of adverse rights.
f) the land has actual pedestrian and vehicular access to and from a public street. My Take: This clause within the document proves that it is addressing the area of the easement because my building takes up 100% of the property all the way to the property line in every direction. Therefore, there is no vehicular access except to the easement since you can't drive a vehicle into my building (it's a dinner theater, not a warehouse with bay doors).
The property description on the affidavit is "104 S. Mechanic Street" and the easement is a portion of the two neighboring properties at 106 and 108 S. Mechanic. But, the reference to parking and to easements (in my mind) makes it clear that the affidavit is intended to address concerns specific to the parking lot and the neighbors.
The title of the document is "Owner's/Seller's Affidavit" and it is notarized and signed by the Sellers on the date of settlement. On that day, this document was reviewed with me prior to signatures and used a tool to ease my mind with regard to the easement and parking lot. A copy was provided to me together with the other closing papers.
Please address each of my points with the correct legal perspective. For instance, a non-lawyer might think that quiet enjoyment means the neighbors can't blast their music really loud. But, in reality, it doesn't have much to do with the neighbors music. If I have a flaw in my thinking with regard to the terms used in the affidavit, please explain the correct way of viewing the language in question.
And, back to the concern . . . is the affidavit as damaging to the Seller as I think it is?
Once you give me insight on these questions, we'll wrap this up. Thanks for your help.
1. An affidavit is an affidavit, and the content of the document is sworn by the affiant to be true and accurate to the best of his/her knowledge. Thus, I don't think someone can get around a sworn affidavit by claiming that it was only meant to be used as a basis to grant title insurance. That's a long shot claim, at best.
2. A property being "subject to" an easement means that the landowner has to tolerate the easement owner's use of the easement area. Conversely, a property owner being "granted an" easement would mean that the person has a right to use the easement area.
3(a). It sounds to me like this statement is in regard to the actual property you bought - - and not about the easement - - the sellers are apparently saying that they're not aware that there's an issue with the property's title. This could be true as the fighting has been over the easement rights - - not the title to the property upon which the easement exists. However, I'm assuming this affidavit is in regard to the easement area for the purposes of my responses.
3(b). The neighbors were apparently in possession of some interest or claimed right to use the easement area. I don't know if they would be classified as "tenants", but they were likely claimants to some form of possession.
3(c). The neighbors' claims could certainly change the title/ownership/easement rights, so this statement is questionable.
Even if your deed doesn't specifically address an easement, you can claim an easement by prescription, which is an easement born by use over a certain period of time - which is 20 years in Maryland (Md. Ann. Code [Cts. & Jud. Proc.] § 5-103). However, you can rely on the use by previous owners to make up the 20 years.
BUT, if your deed doesn't specifically designate an easement, you've got a tougher situation because you have no warranty of an easement, and therefore you will likely have to sue to claim a prescriptive easement based on use of your predecessors in title. Also, the 3(d), (e) and (f) of the affidavit seem to imply that there's an easement - - which should give you standing to go after the seller as well.
Thus, I do think that the affidavit is good ammunition against the seller IF they claim no easement exists after representing to you that it actually did.
The best thing you can do is have an attorney review the titles of each property, discearn whether or not there's a written/recorded easement for your property and then proceed against the seller and neighbors as need be to get this resolved.
You do have legal options, but which way to go will depend on the status of your easement.
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