Deed of Trust Exception to Merger of Title Doctrine?

  Under the doctrine of merger of title an owner of an estate in land cannot also hold an easement in the same land. This doctrine is codified in two statutes: 1) Civil Code section 805 which states: “A servitude thereon cannot be held by the owner of the servient tenement;” and 2) Civil Code section 811 which provides that a servitude is extinguished by the vesting of the right of the servitude and the right to the servient tenement in the same person.

  The rationale for these statutes is to avoid nonsensical easements where they are unnecessary because the owner owns the estate. However, despite the statutory language, the doctrine of merger is not applicable in every case. It is only applied to prevent injustice where it serves the interests of the person holding the two estates in absence of a contrary intent. It is not applied where it would result in injustice, injury, or prejudice to a third person. An agreement that there will not be a merger is generally enforced. Continue reading