Adjacent Owner Issues - Part 2 - Chapters 13-14 Flashcards
Understand the tenement relationship between two parcels of real estate created by an easement
An easement is the right of one property owner to use the property of another. An easement creates a relationship between two Parcels of real estate as it benefits one property whose owner is entitled to use the easement, and burdens another property subject to the easement.
Distinguish an appurtenant easement, which belongs to land, from an easement in gross, which belongs to an individual
An easement burdening an owner’s property as an encumbrance on title to that property is classified as either:
- an APPURTENANT EASEMENT, since the use allowed belongs to and benefits an adjacent property and runs with the land as a property interest held in the burdened real estate, or
- an EASEMENT IN GROSS, which belongs to an individual, not another parcel of real estate, as their personal right in the burdened real estate. An easement in Gross is an easement which belongs to an individual and is not appurtenant to a property.
Comprehend different easements for air, light, view, sun or conservation
Property owners may hold an easement restricting a neighbor’s ability to interfere with the owner’s right to air, light or view. Specifically, solar easements restrict an owners ability to maintain any improvements interfering with a neighbor’s solar energy system.
A conservation easement is a voluntary conveyance of the right to keep land in its natural, historical, or open space condition to a conservation organization or government agency.
easement
An EASEMENT is a right to use another’s property for a specific purpose. The most common easement is used for ingress and egress.
easement for ingress and egress
An EASEMENT FOR INGRESS AND EGRESS is a type of easement granting one property owner the right to traverse a portion of another’s land to access the property.
dominant tenement
DOMINANT TENEMENT describes the property benefiting from an easement on a servient tenement.
An easement creates a tenement relationship between two parcels of real estate since it
- benefits one property, referred to as a dominant tenement, whose owner is entitled to use the easement and
- burdens another property, referred to as the servient tenement, the owners use of their property being subject to the easement
servient tenement
SERVIENT TENEMENT describes a property burdened by a license or easement.
An easement creates a tenement relationship between two Parcels of real estate since it
- benefits one property, referred to as a dominant tenement, whose owner is entitled to use the easement and
- burdens another property, referred to as the servient tenement, the owners use of their property being subject to the easement
appurtenant easement
An APPURTENANT EASEMENT is a type of easement which is incidental to the ownership and belongs to the property which benefits from its use. However, an easement is not reflected as a recorded interest on the title to the parcel of real estate is benefits, nor is it a personal right held by a particular individual who may now or have previously owned the parcel benefiting from the easement. Conversely, an appurtenant easement benefiting one parcel is recorded as an encumbrance on title to the burdened property. The easement remains on the burdened properties title after a conveyance to new owners of either the benefiting or burdened property. An appurtenant easement runs with the land.
An easement burdening an owner’s property as an encumbrance on title to that property is classified as either:
- an APPURTENANT EASEMENT, since the use allowed belongs to and benefits and adjacent property and runs with the land as a property interest held in the burdened real estate, or
- an EASEMENT IN GROSS, which belongs to an individual, not another parcel of real estate, as their personal right in the burdened real estate. An easement in Gross is an easement which belongs to an individual and is not appurtenant to a property.
easement in gross
An EASEMENT IN GROSS benefits a particular person - not any real estate the person might own. An easement in Gross is personally held only by the individual who may use the easement. No parcel of real estate May benefit from an easement in gross since only the individual holding the easement may benefit. While an easement in Gross is a personal right which is not transferred with the sale of any real estate owned by the holder of the easement, the right may be transferred by the easement holder to another person by a writing, unless the transfer of the Easement in Gross is prohibited by a provision in the document creating the easement.
An easement burdening an owner’s property as an encumbrance on title to that property is classified as either:
- an APPURTENANT EASEMENT, since the use allowed belongs to and benefits and adjacent property and runs with the land as a property interest held in the burdened real estate, or
- an EASEMENT IN GROSS, which belongs to an individual, not another parcel of real estate, as their personal right in the burdened real estate. An easement in Gross is an easement which belongs to an individual and is not appurtenant to a property.
solar easement
A SOLAR EASEMENT is an easement restricting an owner’s ability to maintain improvements interfering with a neighbor’s solar energy system.
conservation easement
A CONSERVATION EASEMENT is a voluntary conveyance of the right to keep land in its natural or historical condition to a conservation organization or governmental agency. Conservation easements are perpetual in duration and thus are binding on all successive owners of the property burdened by the conservation easement. A conservation easement is created in the form of an easement or ccrs by use of a deed, will or other instrument to convey the easement.
Understand how an easement is created in favor of one parcel of real estate and as a burden on another parcel
The basic method for creating an easement is by a writing. An easement is created in a conveyance either by:
- a grant or
- a reservation
The owner of adjacent Parcels of real estate may sell one parcel to a buyer and further Grant the buyer an easement on the parcel retained by the owner. Alternatively, an owner of adjacent Parcels may sell a parcel, and in the grant deed conveying the parcel to the buyer, reserve to themselves an easement on the sold parcel for the benefit of the parcel the owner retained.
Apply the requirements for establishing an implied easement and an easement of necessity
Implied easement exist when the circumstances surrounding an owner’s division of their property and sale of a portion of the property imply the owner and buyer intend to Grant an easement for the buyer or the reservation of an easement for the owner.
An easement by necessity is a variation of an implied easement and arises when property is landlocked. In order to establish an easement by necessity, the owner needs to show strict necessity and defend against any claim that the property was intended to be landlocked.
Differentiate between reservations and exceptions when retaining interests on the conveyance of a parcel
The terms “reservation” and “exception” in conveyances of real estate are used to distinguish whether the legally described reservation (easement) or exception (ownership) is:
- created as a burden on the property conveyed for the beneficial use of another property, such as an easement by reservation or
- retained from the parcel conveyed as property of the seller, an exception for land which is not transferred on the conveyance of a portion of a larger parcel.
The terms “reservation” and “exception” in conveyances of real estate are used to distinguish when an owner is reserving an easement for themselves over the property conveyed, or excepting a portion of a parcel from conveyance on the sale.
Distinguish a prescriptive easement from a claim of adverse possession
A prescriptive easement is established by the adverse use of another’s property for a period in excess of five years. A prescriptive easement is distinct from adverse possession in that a prescriptive easement provides the right to use another’s property without a claim of ownership or payment of property tax.
Whether an unrecorded easement by prescription is enforced against a bona fide purchaser (bfp) who becomes the new owner of the burden property is open to different interpretations.
