Chapter 23 : Merger

• Library: Standards for Examination of Real Estate Titles in Arkansas (2021 Ed.)

CHAPTER 23: MERGER

Standard 23.1 In General

Merger issues occur throughout the entire field of real property law. The doctrine is typically stated as "the lesser estate will merge in the greater when the two estates are owned by the same person."³³¹ But merger is more complex and has several meanings depending on its context.

Standard 23.2 Contracts

A contract merges into a deed.³³² This rule is similar to the contract law rule of parol evidence and merger: all prior negotiations and agreements merge into the final contract. Similarly in the context of deeds, "[p]rior negotiations merge into the instrument of conveyance."³³³ However, merger will not occur where there is mutual mistake of fact, misrepresentation or fraud.³³⁴ Similarly, if the contract contains provisions intended to override merger, merger will not apply to those terms.³³⁵

Standard 23.3 Estates and Future Interests

Merger may apply to merge estates and future interests. For example, if a life estate and vested remainder or reversion come to be held by the same person, they can merge into a fee simple absolute.

Standard 23.4 Dower, Curtesy and Homestead

Merger does not occur in the context of dower or curtesy, or the homestead exemption. If a holder of a life estate in dower or curtesy is conveyed a remainder the two will not merge because to do so, the two interests must be in the same person at the same time and in the same right and here one is acquired by virtue of status as a surviving spouse, and the other by conveyance.³³⁶ In the case of homestead, a minor who holds both a homestead interest and an inheritance interest in property holds two separate and distinct property interests. They exist at the same time but are "incapable of merger."³³⁷ Thus a mortgagee who foreclosed on the homestead of a minor would not be able to bring an ejectment action until the minor reached the age of 21.³³⁸

Standard 23.5 Easements

Easements may terminate by merger, where the owner of the easement and of the servient estate are identical.³³⁹ Once an easement has been extinguished by merger, severance will not revive it; for revival to occur, the same standards causing the creation of the first easement must be present.³⁴⁰ Restrictive covenants may also terminate by merger, if the benefited and burdened tracts come under the identical ownership.³⁴¹

Standard 23.6 Trusts

A trust will terminate by merger by operation of law, if all legal and equitable title come into the hands of one person.³⁴²

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