There is a principle in law called the “merger doctrine.” Technically, there are three or four versions of the “merger doctrine” depending on what type of law you’re working with. In real estate law, there are two versions of merger that go by the same name – the doctrine of merger by deed and the doctrine of merger of easements, sometimes known as “the doctrine of unity” or the “doctrine of extinguishment.”
The former, merger by deed, refers to the concept that the purchase agreement disappears after the buyer accepts the deed. In effect, saying “all things that were not expressly held to survive closing will disappear when you close,” leaving the deed the only enforceable document standing at the end of most real estate transactions.
The other version, the “doctrine of unity” version of merger is the concept that an easement is extinguished when the dominant and servient estates are owned by a single, unified owner. Easements are creations at law that require two individuals/parcels. One is dominant and “gains” the easement; the other is servient and “grants” the easement. Oftentimes, you have reciprocal easements where the two parties are simultaneously dominant and servient [e.g., a road along the borderline between two parcels that extends out 10’ on either side of the border. Both owners agree to maintain and use the road, making each one the proud owner of an easement to use/maintain 10’ of the neighbor’s land for that road, essentially creating mirror-image easement rights]. As far back as the Roman Republic and the Codes of Justinian, the law was pretty clear on the animal logic involved in the idea that a person could not grant their own easement to themselves; hence, when a person gained ownership of two properties that previously had an easement, the easement would evaporate under the hard glare of their total rights to legal ownership. British lawyers adopted the same principles into the common law, and several cases reflected the impact of the merger doctrine. One case in the 1600s, “Lady Browne’s Case,” involved a well-to-do lady who had a water pipe easement running through the neighbor’s land. She purchased the neighbor’s land and removed the water pipes, then later sold her original parcel, and the House of Lords ruled that the previous pipe easement had ‘merged’ into Lady Browne’s ownership rights and therefore no longer existed – i.e., no pipelines for the new owner. The easement merger doctrine sparked substantial controversy over the centuries, though, and it is a distinctly unpopular doctrine of law regularly described as “obtuse” and “confusing.” Nonetheless, Oregon’s courts took a hard stance in 2020 with a case called Partney v. Russell, 304 Or. App. 679 (2020), where the court reviewed a merger doctrine question and essentially held the line on the doctrine of unity. The court found that ownership of both lots simultaneously will erase an easement, even when it is made in an express declaration of the unified land owner. Through the case, for all intents and purposes, Oregon’s court of appeals made a strong statement that an individual is not permitted to encumber the land by giving themselves a right to their own land. This does have some knock-on effects in development, real estate sales, and particularly in rural Oregon, where easements are more regular fixtures in the legal firmament. For your purposes as a broker, be aware that this case may be the reason why the developer is asking your client to agree to an easement as part of the sale, or why the neighbor is demanding that your client sign an access or waterline easement as a condition of closing.