Understanding Easements
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This document discusses different types of easements, including easements appurtenant, easements in gross, easements of necessity, prescriptive easements, and easements by reference to plats and maps. It explains the key elements required to establish each type of easement across various states east of the Mississippi River. The document also notes exceptions and limitations to establishing prescriptive easements in some states. Finally, it discusses rules around reserving easements to third parties through a single deed conveyance.
Understanding Easements
- 1. UNDERSTANDING EASEMENTS First American Title Insurance CLE King of Prussia, PA
- 2. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys The Deed: The reason for so much easement litigation
- 3. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys The Deed: Empire State Building
- 4. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys The Deed: World Trade
- 5. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Title insurance policies covering easements
- 6. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Title insurance policies covering easements
- 7. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements Appurtenant vs. Easements in Gross
- 8. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements Appurtenant • Created for the beneficial use of a particular parcel of real property, which is referred to as the “dominant estate” or the “dominant tenement.” • The real property that is burdened by the easement is commonly referred to as the “servient estate” or “servient tenement.”
- 9. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements in Gross • Easements in gross benefit a person or entity, rather than another real estate parcel • May be personal or commercial
- 10. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements in Gross • Commercial easements in gross are assignable or transferable, especially pipelines and utilities
- 11. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Types of easements in almost all 26 states east of the Mississippi • Written express grant • Prior use • Necessity (except Georgia) • Prescription • Reference to plats and maps (Indiana has not ruled)
- 12. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Express Grant
- 13. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements of Necessity • Must be absolutely necessary to cross somebody’s land for a legitimate purpose
- 14. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Elements of Necessity 1. Prior common ownership of dominant and serving tenements. 2. Transfer of one of the parcels. 3. Strict necessity for an easement at the time of severance.
- 15. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Elements of Necessity
- 16. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Elements of Necessity
- 17. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Prescriptive Easements
- 18. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Prescriptive Easements
- 19. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Elements of Prescription 1. Adverse 2. Exclusive 3. Open and Notorious 4. Continuous and uninterrupted for requisite time period – east of the Mississippi, this is 7 to 21 years
- 20. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Elements of Prescription
- 21. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Exceptions or limitations to Prescriptive Easements • Kentucky bars Prescriptive Easements “based on use solely for recreational purposes” • Pennsylvania prohibits Prescriptive Easements in unenclosed woodlands • Rhode Island has no right of footway except claimed in connection with a right to pass with carriages and non- profits for conservation
- 22. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements by Reference to Plats and Maps
- 23. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements by Reference to Plats and Maps • Deed makes no reference to the plat or plans. • Plans delineate public areas, streets, alleys, parking spaces.
- 24. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements • Must abide by common law rule, which states that the intended easement is invalid if a single instrument is used to reserve the easement to one person and, simultaneously, to convey the burdened estate to another. • Instead, the grantee takes the estate free of the easement, despite the clear contrary intent of the parties. In these states, to effectuate the transfer of an easement to a third party and avoid the common law prohibition, two conveyances must be used: the first conveys the easement to the intended beneficiary and the second subsequently transfers the servient estate to the intended transferee.
- 25. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys Easements • Only a handful of jurisdictions allow for a reservation of an easement to a person who is not a party to the transaction. These states are: Connecticut, Indiana, Kentucky, New Jersey, Ohio, and Wisconsin.
- 26. ADAM LEITMAN BAILEY, P.C. New York Real Estate Attorneys THE END