1. 1 Welcome to the International Right of Way Association’s Course 802 Legal Aspects of Easements 802-PT – Revision 1 – 08.25.06.USA

2. 2 Introductions Who we are… What we do… Where we do it… How long we’ve been doing it… Our goals for the day...

3. 3 Objectives (1) At the conclusion of the day, you will be able to... Express an understanding of the concepts and terminology related to easements, including: Easement typesEasement construction rules Easement creationEasement termination Scope of useLocation and width Negative easements

4. 4 Objectives (2) At the conclusion of the day, you will be able to... Utilize examples and solve exercises that apply the concepts and terminology to specific easement scenarios.

5. 5 Housekeeping

6. 6 Schedule (1) 8:00 - 8:30Introductions, Etc. 8:30 - 9:30Easement Types and Construction Rules 9:30 - 12:00 Easement Creation

7. 7 Schedule (2) 1:00 - 2:00Easement Termination 2:00 - 2:45Scope of Use 3:00 - 3:30 Location and Width 3:30 - 4:00Negative Easements 4:00 - 4:15Review 4:15 - 5:00Examination

8. 8 Easement An easement is a non-possessory interest one has in the property of another for a specific purpose.

9. 9 Easement Appurtenant is an easement for the benefit of another real estate parcel. “Runs with the land.”

10. 10 Estates Dominant estate is the property benefited by the easement. Servient estate is the property burdened by the easement.

11. 11 Dominant and Servient Estates Parcel A Parcel B Right of way (easement)

12. 12 Easement In Gross (1) Easement In Gross benefits a person or entity, rather than another real estate parcel. It may be personal or commercial.

13. 13 Easement In Gross (2) Personal easement in gross is a personal right of a person or persons.

14. 14 Personal Easement In Gross Property Owner D Property Owner E Driveway

15. 15 Personal Easement In Gross Property Owner D Property Owner F

16. 16 Easement In Gross (5) Commercial easement in gross is a right to an entity (an organization, a business).

17. 17 Right of Way Generally, a right of way is the right to use land of another in a particular line.

18. 18 Profit a Prendre Profit a prendre is the right to take from the soil of another.

19. 19 License A license is a personal privilege to do some act on the property of another.

20. 20 Construction Rules Intent Construed against the grantor General terms Specific terms Use

21. 21 Intent “A permanent easement in, on, overland across Tract No. W-218 as a dredged material placement site, including the right to borrow, remove, and/or deposit fill, spoil and waste material thereon and erect and remove structures and dikes on the land and to perform any other work necessary and Incident to the placement of dredged material, and maintenance of the dredged material placement site…”

22. 22 Express Grant An express grant creates an interest in property in a written document containing all the elements of a deed and conforming to the Statute of Frauds.

23. 23 Potential Problems Property interests Spousal rights Cotenancy Lack of legal capacity Recording act violations

24. 24 Express Reservation or Exception (1) A reservation reserves a future right. An exception excludes an existing right.

25. 25 Express Reservation or Exception (2) Reservation: “The grantor hereby reserves unto herself … an easement appurtenant for driveway purposes…” Exception: “The grantor hereby excepts from the above described conveyance … an easement appurtenant for driveway purposes…”

26. 26 Potential Problems Grants to third parties Easement appurtenant v. easement in gross

27. 27 Express Dedication (1) An express dedication is created by common law or by statutory dedication or by plat.

28. 28

29. 29 By Reference (1) An easement may be given by referring to another document with the easement and its terms.

30. 30 By Reference (2) A: “…grant the purchaser easement rights … that are shown of the plat.” B: “Together with that certain easement … between grantor and X … recorded... at Book 999, Page 444…” C: “… thence along said westerly right of way limit …”

31. 31 Implied Grant or Reservation (1) An implied grant or reservation occurs when a landowner uses part of his/her property for the benefit of another part of the property and subsequently conveys a portion of the property without reserving or creating an easement.

32. 32 Implied Grant Example “Backhalf” Property A Driveway

33. 33 Implied Reservation Example Parcel Z Parcel Y Driveway

34. 34 Easement By Necessity (1) Courts will create an easement when it is strictly necessary for the utilization of a landlocked parcel.

35. 35 Easement By Necessity (2) Parcel Z Parcel Y

36. 36 Statutory Procedures Some jurisdictions have statutory procedures whereby a property owner may initiate a condemnation action for an easement.

37. 37 Condemnation (1) An easement for public use created constitutionally and statutorily.

38. 38

39. 39 Estoppel Estoppel is when a person undertakes actions in reliance on the conduct or statements of another.

40. 40 Prescription (1) Easement creation through actual, open, and notorious, continuous and uninterrupted and hostile use for a statutory period of time.

41. 41 Prescription (2) The distinction between adverse use and lost grant is “who must prove that the use was not permissive.”

42. 42 Color of Title An apparent but invalid title based upon a written instrument or record; but it does convey “color of title.”

43. 43 Easement Termination (1) Abandonment Specific Expiration Date or Purpose Release Merger Adverse Possession Estoppel Eminent Domain Foreclosure Recording Act Violations Vacation

44. 44

45. 45 Easement Termination (3) Abandonment Specific Expiration Date or Purpose Release Merger Adverse Possession Estoppel Eminent Domain Foreclosure Recording Act Violations Vacation

46. 46 Easement TerminationDefinitions Abandonment4. Non-use coupled with an intent not to use. Expiration5. At the end of a specified term or at the end of a particular use. Release1. A document that relinquishes the easement owner’s interest or conveys the interest to the servient estate.

47. 47 Easement TerminationDefinitions Merger6. Combining the easement with the fee simple. Adverse Possession3. Using the easement inconsistently with the stated purpose for a statutory time period.

48. 48 Easement TerminationDefinitions Estoppel8. When the easement owner’s words or conduct are likely to cause the servient interest to believe the easement has been abandoned. Foreclosure7. The foreclosing of a prior interest. Vacation2. Statutory process.

49. 49

50. 50 Rule of Reasonableness Applies to both the uses to which the easement owner may put the easement and the burden of the easement of the landowner.

51. 51 Division of the Dominant Estate “ A grants B a driveway easement across A's property to B's small lakefront cabin on five acres, with the understanding that B wants the easement for easier access to go fishing on the weekends. Two weeks later, B paves the driveway easement, subdivides the five acres into 11 lots, and begins the construction of a five-story resort hotel.

52. 52 Division of the Dominant Estate (2) Parcel O Parcel Z Driveway Easement 1 23 4

53. 53 Location and Width Described Locations Blanket Easements Easements By Necessity Relocation Width

54. 54 Negative Easement A negative easement is a limitation on the way in which a person may use real property.

55. 55 Objectives (1) Right now, you should be able to... Express an understanding of the concepts and terminology related to easements, including: Easement typesEasement construction rules Easement creationEasement termination Scope of useLocation and width Negative easements

56. 56 Objectives (2) Right now, you should be able to... Utilize examples and solve exercises that apply the concepts and terminology to specific easement scenarios.

57. 57 Thank you! 802-PT – Revision 1 – 08.25.06.USA