Adjacent Owner Issues & Use Restrictions - Part 2 - Chapters 41-43

Question 1

Understand how an easement is created in favor of one parcel of RE and as a burden on another parcel

Answer 1

The basic method of creating an easement is by a writing and can be created btwn the benefiting and burdened properties in an:

• easement agreement
• will
• grant deed
• easement deed
• quitclaim deed
• lease
• order of the court
• CCnRs.

An easement is created in a conveyance either by a:

• grant
• reservation

The terms reservation and exception in conveyances of RE are used to distinguish if an owner is reserving an easement for themselves over the property conveyed, or giving up a portion/easement of a parcel from conveyance on the sale.

Question 2

Apply the requirements for creating an implied easement and an easement of necessity

Answer 2

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 the buyer intend either the GRANT of 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 must show strict necessity and defend against any claim that the property was intended to be landlocked.

Question 3

Distinguish a prescriptive easement from a claim of adverse possession

Answer 3

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 distinctly different 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 taxes.

In other words, the difference is that prescription establishes the right to the mere use of another’s property, whereas adverse possession is an actual taking of exclusive possession under a claim of ownership and the payment of property taxes.

Question 4

easement by necessity

Answer 4

An Easement by necessity is an easement providing access to a landlocked property.

Question 5

implied easement

Answer 5

An Implied Easement is an easement created by the conduct of parties without prior agreement. Implied easements exist when the circumstances surrounding an owners division of their property and sale of a portion of the property imply the owner (grantor) and the buyer (grantee) intended either
* the grant of an easement on the portion retained by the owner
* the reservation of an easement by the owner on the portion sold.
For an implied easement to exist the easement needs to be reasonably necessary for the beneficial use of the parcel whose owner is seeking to establish the easement.

Question 6

prescriptive easement

Answer 6

A prescriptive easement is established by the adverse use of another’s property for a period in excess of FIVE YEARS. To meet the legal requirements for acquiring an easement by prescription,

An easement created by prescription is similar to acquiring land by adverse possession.

Question 7

Identify how an easement burdening a property is extinguished by release, merger, destruction, forfeiture, prescription or abandoment

Answer 7

An existing easement can be extinguished, no longer affecting the burdened property as an encumbrance on its title. Methods used to extinguish an easement include:

• RELEASE of the easement by a deed from the owner of the property
• MERGER by the acquisition of both the benefiting and burdened properties by the same owner
• DESTRUCTION of the burdened property
• FORFEITURE due to the easement holder’s abuse of their easement rights
• PRESCRIPTION - easements can be established by prescription, and likewise, an easement can be extinguished due to the burdened property owner’s continuing interference with the easement for period of 5 years.
• ABANDONMENT by the conduct of the easement holder showing they never intend to use their easement rights again.

Question 8

Distinguish the attributes of each method of extinguishment

Answer 8

• RELEASE of the easement by a deed from the owner of the easement holder’s (benefitting) property. The Release can be voluntary and accomplished by the use of a Quitclaim or grant deed, signed by the owner of the property holding the appurtenant right to use the easement.
• MERGER by the acquisition of both the benefiting and burdened properties by the same owner. Here the same owner acquires fee title to both properties.
  The owner cannot have an easement over their OWN property for the benefit of themselves, therefore the easement is automatically extinguished on the Common Ownership of both the properties.
• DESTRUCTION of the burdened property. Nonexistence of the burdened property renders the use of the easement impossible.
• FORFEITURE due to the easement holder’s abuse of their easement rights or the excessive burden on the property encumbered by the easement. Here the increased use of the easement constitutes an excessive burden on the property it encumbers and thus the easement is extinguished by forfeiture.
• PRESCRIPTION due to the burdened property owner’s continuing interference with the easement. Here the easement is extinguished by the burdened property owner’s use of the area within the easement which permanently interferes with their neighbor’s ability to use the easement. Easements can be established by prescription, and likewise, an easement can be extinguished due to the burdened property owner’s continuing interference with the easement for period of 5 years.
• ABANDONMENT by the conduct of the easement holder showing the never intend to use their easement rights again. The termination of an easement by abandonment is not easily established. The easement holder’s actions need to demonstrate a clear intent to permanently abandon all future use of the easement, never to use it again.

Question 9

abandonment

Answer 9

Abandonment is the termination of an easement when the easement holder’s actions demonstrate a clear intent to permanently abandon all future use of the easement.

Question 10

forfeiture

Answer 10

Forfeiture is the termination of an easement when the easement holder exceeds their authorized use of the easement by placing an excessive burden on the property encumbered by the easement.

Question 11

merger

Answer 11

Merger is the termination of an easement when one owner acquires fee title to both the property benefiting from the property burdened by an easement.

Question 12

Identify the different types of trespass

Answer 12

A trespass is any wrongful and unauthorized entry onto real estate in the possession of another. Thus a trespass is fundamentally an interference with another’s possession of RE. A Fee owner can even trespass on the property they own in fee simple when the property is in the legal possession of another person, such as a tenant.

A trespass can also result from the indirect entry into another’s property, sometimes called trespass on the case. For example one can be liable on a trespass for losses caused by activities done to another person’s property such as:

• depositing dirt or debris
• leaving toxic waste
• leaving personal property
• diverting a river or surface waters
• starting a fire and allowing the fire to spread
• allowing one’s animals to wander

Question 13

Understand the remedies a rightful occupant has against trespassers

Answer 13

A trespasser incurs civil liability for the monetary amount of any losses or injury caused to the occupant’s person, real estate or personal property. If no injury has occurred, the occupant may recover nominal money losses from the trespasser.

A trespasser may incur criminal liability if they do not leave when requested since the trespass becomes a misdemeanor. When a trespasser does not leave when requested, the owner may recover possession of their property through a court action, except for a transient occupant who failed to depart as agreed.

The type of action brought to recover property depends on the type of possession held in the property.

• EJECTMENT ACTION - in the case of a trespasser occupying property, the legal remedy is an ejectment action. in this action, an owner needs to prove they have a superior right to possession of the property. The owner may then get a court order for the removal of the trespasser, called a WRIT OF POSSESSION. Court order is carried out by the sheriff, not the owner.
• ADVERSE POSSESSION - A trespasser can also acquire title to the property by adverse possession if they can maintain exclusive possession of the property as a trespasser for a period of FIVE 5 years. The trespassers possession needs to be open and known to the owner and the trespasser is to pay all property taxes.

Question 14

actual money losses

Answer 14

Actual Money Losses (monetary losses) recoverable for a trespass are:

• injury to the real estate
• lost use of the property
• personal injury
• injury to the occupant’s personal property.

Question 15

adverse possession

Answer 15

Adverse Possession is a method of acquiring title to RE owned by another by openly maintaining exclusive possession of the property for a period of FIVE years and paying all property taxes.

Question 16

ejectment

Answer 16

EJECTMENT ACTION is a civil action to recover possession or title to land from someone wrongfully in possession. Ejectment is similar to Unlawful Detainer, but has less stringent proof of trespass requirements. The trespasser in an ejectment action, unlike the tenant in a UD action, never had legal possession of the property for an owner to have the trespasser legally removed.

In this action to eject a trespasser, an owner needs to prove they have a superior right to possession of the property. The owner may then get a court order for the removal of the trespasser, called a WRIT OF POSSESSION. Court order is carried out by the sheriff, not the owner.

Question 17

nominal money losses

Answer 17

An owner may bring action for trespass against a trespasser even when the trespasser caused no actual injury by his presence in the own’er property. If no injury has occurred, the owner may only recover Nominal Money Losses from the trespasser. Nominal Money Losses are awarded when a wrong has taken place but has not resulted in a money loss.

Question 18

midemeanor

Answer 18

In addition to liability for property damages, a trespasser may also incur criminal liability. Trespassing becomes a misdemeanor when the trespasser:

• Refuses to Leave the property when requested by the owner or anyone
• Enters and Occupies the property without the rightful owner’s consent
• Refuses to leave a transient occupancy establishment (hotel/motel/vacay property) on the request of the owner or manager
• Enters a private dwelling
• Enters Industrial Property (such as oil field, gas or electric plant, railroad yard) where posted signs forbid trespassing.

Question 19

trespass

Answer 19

A TRESPASS is any wrongful and unauthorized entry onto real estate in the possession of another. Thus, a trespass is fundamentally an interference with another’s possession of real estate.