WeConservePA has updated its Model Consent, Non-Disturbance, and Subordination Agreement with Commentary.

When a mortgage precedes an easement on a property, the possibility that one day the mortgage could be foreclosed poses a threat to the continued existence of the easement unless the holder of the mortgage signs an agreement that allows the easement to survive a foreclosure. In addition, “subordination” is necessary if a tax deduction will be sought for an easement donation. This model legal document provides a vehicle to satisfy both of these issues. Be sure to download both the model and the commentary.

The WeConservePA guide Pre-Existing Mortgages in Easement Transactions addresses consent, non-disturbance, and subordination, including how to approach the mortgage holder. The Model Consent, Non-Disturbance, and Subordination Agreement provides owners and easement holders with a sample document to submit to the mortgage holder with other information (as detailed in the guidance) supporting the request. Some mortgage holders will want to use their own form. In that case, the model and commentary may be useful to evaluate whether the mortgage holder’s document will provide the necessary assurances or whether changes are needed.