Hinkel Chapter 05
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For Neal Graham's Real Estate Class (LEGL 3485) at the University of Memphis. Copyright Cengage Learning.
Hinkel Chapter 05
- 1. Chapter 5 Easements and Licenses
- 2. Objectives ? After reading this chapter, you should be able to – Understand the uses of an easement. – Identify the various kinds of easements and their methods of creation and termination. – Explain the purpose of a license and distinguish it from an easement.
- 3. Easements ? Right to use real property of another owner for specific purpose – Types of easements ? Utility ? Access
- 4. Easements ? Categories – Easement appurtenant ? Created for benefit of a particular tract of land – Dominant and servient tenement – Easement in gross ? Does not benefit land
- 5. Easements ? Creation of easements – Express grant – Implied – Prescriptive – Necessity
- 6. Easements ? Express grant – Separate document – Reservation of easement contained in a deed – Grantor: owner of real property on which the easement is located – Grantee: owner of real property being benefited by the easement
- 7. Easements ? Preparation of formal grant of easement – Consideration – Location – Use – Term – Exclusive or nonexclusive – Liability for easement area – Repair and maintenance
- 8. Easements ? Implied easement – When real property is conveyed, the conveyance contains whatever is necessary for the beneficial use and enjoyment of the real property. – Unwritten – Perpetual
- 9. Easement ? Implied easement – Case ? Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529 (Va. 1991) – At time of purchase, use of lake by seller was apparent, continuous, and reasonably necessary to enjoyment of property surrounding lake.
- 10. Easement ? Prescriptive easement – Created when a person uses property without the permission of the owner for a period of time. – Use of easement must be adverse and hostile to the owner of the real property over which the use is being made. – Unwritten – Perpetual
- 11. Easement ? Easement by necessity – Grants quasi-private right to condemn an adjoining owner’s land for purposes of acquiring an access easement to a public street or road – Generally requires fair compensation
- 12. Easements ? Termination of easements – Once granted, an easement continues to exist until terminated by operation of some rule of law or by terms of express grant.
- 13. Easements ? Termination of easements – Termination by ? Expiration of express term ? Abandonment ? Merger ? Foreclosure of prior servient liens ? Express release or termination
- 14. Checklist for Creating Easements ? Parties – Grantor ? Fee owner – Grantee ? Appurtenant easement ? Easement in gross
- 15. Checklist for Creating Easements ? Description of easement area – Blanket description – Specific location – Description of property to be benefited by easement
- 16. Checklist for Creating Easements ? Purpose of easement – General types of use ? Utility location ? Access to and from public streets ? Parking ? Encroachment permission – Description of use
- 17. Checklist for Creating Easements ? Purchase price or consideration – Mutual benefit – Nominal consideration – Negotiated purchase price
- 18. Checklist for Creating Easements ? Term – Perpetual – Fixed term – Conditioned upon event
- 19. Checklist for Creating Easements ? Exclusive or nonexclusive use ? Maintenance obligations – Joint maintenance – Grantee of easement maintains – Grantor of easement maintains
- 20. Checklist for Creating Easements ? Liability – Cross-indemnities – Grantee indemnifies grantor – Liability insurance
- 21. Checklist for Creating Easements ? Consent of prior mortgagees – Consent to the grant of easement by all prior mortgage holders or lien holders to prevent termination of easement in the event of foreclosure – Title examination of easement property to determine existence of prior mortgages or liens
- 22. Checklist for Creating Easements ? Signatures – Signature of grantor – Signature of grantee if easement provides for grantee indemnities or other obligations – All signatures witnessed and notarized in a form to permit easement to be recorded
- 23. Checklist for Creating Easements ? Recordation of easement – Easement recorded to protect grantee against future purchasers, mortgagees, or lienholders of the subject property
- 24. Licenses ? License – Revocable privilege or permission to do an act or a series of acts on land possessed by another – Distinguished from easement because license is merely permission to perform a certain act ? Easement is property ownership interest – Can be created orally or in writing, or implied by conduct
- 25. Practical Tips for the Paralegal ? Preparation of an easement requires the same research and drafting skills as any other legal document. – Language used to create use, location, and limitations of easement should be concise and with clear meaning.
- 26. Practical Tips for the Paralegal ? Preparation – Determine exact location of easement. – Determine rights and duties of each party. – Determine duration and liability.
- 27. Ethics: False Witness ? Unethical for an attorney or a paralegal to give false witness or commit perjury on behalf of a client ? Notarizing signature requires personal witness of signatory – Or paralegal may be committing perjury
- 28. Summary ? Easements may be created for private use or public benefit (utilities) ? Easements may be created by – Express creation – Implication – Prescription – Necessity
- 29. Summary ? Duration of easement – Express period of time or perpetual ? Termination – Expiration of express term – Abandonment – Merger – Foreclosure of prior lien – Express release or termination
- 30. Summary ? License – Grants the holder permission to do something upon the grantee’s land – Different from an easement because a license is not a property interest