DISCLAIMERYou agree, by participating in this webinar, that the information presented does not constitute

legal advice and is being presented for informational purposes only. You agree that no

attorney-client relationship is established or assumed by participating in this webinar and that the information or suggestions presented in this broad overview may not apply to your specific

circumstances.

What Are Easements__________

NON-POSSESSORY INTEREST IN

SOMEONE ELSE’S PROPERTY

DEFINITIONCHARACTERISTICS

FORMATION

BASICS• Type Based on How Created• Set of Elements to Establish• Recorded By Documents• Encumbrance• Shared Use

DEFINITIONCHARACTERISTICS

FORMATION

TYPES OF EASEMENT RIGHTS

AccessUtilityLightAirViewParkingMaintenanceWater Rights

FishingRecreationSupportRetaining WallsFencesParty WallsExclusive*

DEFINITIONCHARACTERISTICS

FORMATION

What Easements ARE NOT

__________⊗OWNERSHIP

DEFINITIONCHARACTERISTICS

FORMATION

MAINTENANCE

LEGAL DESCRIPTION

SCOPE/EXTENT OF RIGHTS

RESTRICTIONS

PROTECTIONS

CHARACTERISTICS

DEFINITION

FORMATION

How Formed__________

OWNER | JUDGE• Express • Necessity

• Prescriptive• Equitable

FORMATION

DEFINITION

CHARACTERISTICS

Can An Easement Be Obtained?FORMATION

DEFINITION

CHARACTERISTICS

• Fact-specific determination• Cooperation of property owner• If not, are easement elements met?

EXPRESSEXPRESS

PRESCRIPTIVE

NECESSITY

EQUITABLE Specifically granting an easement to another, by

way of a written instrument that is

recorded. Found on a Preliminary Report

EXPRESSEXPRESS

PRESCRIPTIVE

NECESSITY

EQUITABLE

Interpretation of Express Easements:

permissible use determined by intent of

the parties, historical use

NECESSITYNECESSITY

EXPRESS

PRESCRIPTIVE

EQUITABLE

Easement necessary for the owner to gain access to his or her landlocked

property

NECESSITYNECESSITY

EXPRESS

PRESCRIPTIVE

EQUITABLE ELEMENTS1. Two parcels 2. Previously under common ownership3. One parcel is landlocked4. Access

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLE

A non-owner can acquire a right to use land based on

time & nature of use

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLE ELEMENTS1. 5 years of continual use2. Open, notorious, & visible possession3. Hostile & adverse to owner4. Under a claim of right

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLEThere is no such thing as an exclusive prescriptive

easement

Garden-variety fence disputes do not equal prescriptive easement

EQUITABLEEQUITABLE

NECESSITY

EXPRESS

PRESCRIPTIVE

Court exercises equitable jurisdiction when grounds

for other easements do not exist

EQUITABLEEQUITABLE

NECESSITY

EXPRESS

PRESCRIPTIVE

ELEMENTS1. Party used & improved easement2. Innocent belief of right to use land3. Irreparable harm if could not

continue using4. Affected owner would suffer little

harm

Outside the Scope of Permitted Use

How to Determine Scope

__________

Differences in Different Kinds of

Easements

Abandoned Easement

ELEMENTS1. Non-Use2. An Intention to

Abandon the Easement3. Damage to the Owner of

the Servient Estate from Continued Existence of Easement

Air, Light, & View Easements

Commonly Desired__________

No Inherent Right

TITLE REPORT

Issues•Fence Disputes•Trees•Property Line•Driveways

NOT EASEMENTS

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LAUNCHING MAY 25th

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