Real Estate Law Ownership Restrictions. Basic Principles of Real Estate Law Subjects Covered: ...

Real Estate Law

Ownership RestrictionsOwnership Restrictions

Basic Principles of Real Estate LawBasic Principles of Real Estate Law

Subjects Covered:Subjects Covered:

Governmental Restrictions on Governmental Restrictions on OwnershipOwnership

Private Restrictions on OwnershipPrivate Restrictions on Ownership

Interests Affecting Ownership of Real PropertyInterests Affecting Ownership of Real Property

Licenses

EasementsBy

Necessity

PrescriptiveEasements

ElectiveShare

HomesteadRights

Riparian &LittoralRights

OwnershipOf

Property

ZoningZoning

Definition:Definition:

The division of lands by legislative The division of lands by legislative regulations, into areas or zones, which regulations, into areas or zones, which specify allowable land uses and size specify allowable land uses and size restrictionsrestrictions..

Purpose:Purpose:

Zoning is a tool used by a city or town to Zoning is a tool used by a city or town to help manage how the land within its help manage how the land within its borders is used.borders is used.

Zoning (cont’d)Zoning (cont’d)

How It Works:How It Works:

Areas of land are designated as districts or Areas of land are designated as districts or zones. zones.

Each type of district or zone allows for a Each type of district or zone allows for a different type of land different type of land useuse and has specific and has specific areaarea requirements.requirements.


Why It’s Done:Why It’s Done: Zoning is the rule of government to regulate the Zoning is the rule of government to regulate the

use and development of lands in order to use and development of lands in order to promote the health, safety and general welfare promote the health, safety and general welfare of the public. of the public.

It is enacted to It is enacted to

help guide and control development, help guide and control development,

to implement long-range planning goals and to implement long-range planning goals and objectives objectives

to address specific development issues that are to address specific development issues that are important to the community.important to the community.


How It Is Administered:How It Is Administered:

Each municipality administers and enforces Each municipality administers and enforces their own local zoning rulestheir own local zoning rules

Federal and State government mandate certain Federal and State government mandate certain uniform regulations:uniform regulations:

Shore landShore land

FloodplainFloodplain

WetlandsWetlands

Airport height and use restrictionsAirport height and use restrictions


Zone designation:Zone designation: Geographic designation of what places are Geographic designation of what places are in what zonein what zone

Generally requires legislative approval and Generally requires legislative approval and public hearing at local level public hearing at local level

Spot zoning: grants one parcel of land a Spot zoning: grants one parcel of land a zoning different from rest of a neighborhoodzoning different from rest of a neighborhood

Types:Types: AgriculturalAgricultural PublicPublic

ResidentialResidential CommercialCommercial IndustrialIndustrial


General Issues:General Issues: Setback requirementsSetback requirements

Height restrictionsHeight restrictions

Required area and frontageRequired area and frontage

Historic properties or districtsHistoric properties or districts

Design requirementsDesign requirements

Maintenance regulationsMaintenance regulations

Private deed restrictionsPrivate deed restrictions

Building CodesBuilding Codes


The building code is a “minimum standard” The building code is a “minimum standard” that insures that all projects are safe.that insures that all projects are safe.

Massachusetts uses its Building Code for all 1 Massachusetts uses its Building Code for all 1 and 2 family homes. and 2 family homes.

Individual municipalities can be MORE Individual municipalities can be MORE restrictive, if they choose.restrictive, if they choose.

Building Codes (cont’d)Building Codes (cont’d)

Municipalities have building inspectors.Municipalities have building inspectors.

The local building inspector issues building The local building inspector issues building permits and makes inspectionspermits and makes inspections

There is no uniform process and no uniform There is no uniform process and no uniform fee applied to acquiring and paying for fee applied to acquiring and paying for building permits.building permits.

Each municipality can, and usually does, do Each municipality can, and usually does, do things differently.things differently.

Zoning ToolsZoning Tools

Variances: gives landowner an exception to Variances: gives landowner an exception to break some zoning rules in a zone. break some zoning rules in a zone.

Use variances: permits otherwise unacceptable Use variances: permits otherwise unacceptable use without change of zoneuse without change of zone

Variance from standards: allows use that doesn’t Variance from standards: allows use that doesn’t meet standards that others must meetmeet standards that others must meet

Ostensibly for “hardship” exemption: if some Ostensibly for “hardship” exemption: if some feature of land makes it impossible to make use feature of land makes it impossible to make use of it under existing zoning (e.g. big boulder)of it under existing zoning (e.g. big boulder)

Courts are divided as to what is “hardship”Courts are divided as to what is “hardship”

Zoning Tools (cont’d)Zoning Tools (cont’d)

Non-conforming usesNon-conforming uses

Inclusionary zoningInclusionary zoning

Density bonusesDensity bonuses

Planned Unit DevelopmentsPlanned Unit Developments

Separate zoning ordinance written for one Separate zoning ordinance written for one specific development; standards appropriate to specific development; standards appropriate to that particular projectthat particular project

Often used interchangeably with “specific Often used interchangeably with “specific plan,” which is both a planning and plan,” which is both a planning and implementation toolimplementation tool

Environmental Protection LawsEnvironmental Protection Laws

1.1. Clean Air ActClean Air Act

Establishes national primary and secondary air Establishes national primary and secondary air quality standards. Requires compliance through quality standards. Requires compliance through review of preconstruction plans to determine review of preconstruction plans to determine direct and indirect sources of air pollution.direct and indirect sources of air pollution.

2.2. Clean Water ActClean Water Act

Requires property owners to obtain permit from Requires property owners to obtain permit from Army Corps of Engineers prior to dredge-and-fill Army Corps of Engineers prior to dredge-and-fill activities in any body of water.activities in any body of water.

Environmental Protection Laws (cont’d)Environmental Protection Laws (cont’d)

3.3. Solid Waste Disposal ActSolid Waste Disposal Act

Prohibits open dumping of solid and hazardous Prohibits open dumping of solid and hazardous waste and imposes civil and criminal penalties waste and imposes civil and criminal penalties for such activities.for such activities.

4.4. Federal Water Pollution Control ActFederal Water Pollution Control Act

Establishes a comprehensive plan to eliminate Establishes a comprehensive plan to eliminate pollution from navigable water and provides pollution from navigable water and provides federal assistance for public waste treatment federal assistance for public waste treatment facilities and waste management; imposes facilities and waste management; imposes liability for hazardous waste cleanup of toxic liability for hazardous waste cleanup of toxic sites.sites.


5.5. Comprehensive Environmental Response, Comprehensive Environmental Response, Compensation & Liability Act of 1980 Compensation & Liability Act of 1980 (CERCLA or Superfund)(CERCLA or Superfund) Federal statute for:Federal statute for:

1.1. Cleanup of contaminated property, andCleanup of contaminated property, and

2.2. Allocation of liability for costsAllocation of liability for costs

Retroactive, strict and where harm is Retroactive, strict and where harm is indivisible, joint and several liability for costs indivisible, joint and several liability for costs of responding to a release. No showing of fault of responding to a release. No showing of fault is required.is required.


LIABILITY UNDER SUPERFUNDLIABILITY UNDER SUPERFUND

Release has occurred or is threatenedRelease has occurred or is threatened

Response costs were incurredResponse costs were incurred

Person involved is one of the following:Person involved is one of the following: Current owner or operator of facilityCurrent owner or operator of facility

Former owner or operator of facilityFormer owner or operator of facility

Person who arranges for transport, treatment or disposal Person who arranges for transport, treatment or disposal of hazardous substancesof hazardous substances

Transporter of hazardous substancesTransporter of hazardous substances

Note: exceptions applyNote: exceptions apply

Limited Defenses to LiabilityLimited Defenses to Liability

Purchasers of Property/Innocent LandownersPurchasers of Property/Innocent Landowners Innocent owner did not know nor had reason to know it Innocent owner did not know nor had reason to know it

was therewas there Importance of conducting Phase I and Phase II Importance of conducting Phase I and Phase II

AssessmentsAssessments Property acquired after hazardous substance placed on Property acquired after hazardous substance placed on

propertyproperty

Secured PartiesSecured Parties Court decisions finding secured lenders who acquired Court decisions finding secured lenders who acquired

property through foreclosure or who have restrictive property through foreclosure or who have restrictive covenants in loan agreements to be “owners or covenants in loan agreements to be “owners or operators” and liable under CERCLA.operators” and liable under CERCLA.

EPA issued Lender Liability Rule in 1992. Struck down by EPA issued Lender Liability Rule in 1992. Struck down by DC Circuit.DC Circuit.

1996 Lender Liability Amendments passed by Congress - 1996 Lender Liability Amendments passed by Congress - - codified the Lender Liability Rule- codified the Lender Liability Rule

Limited Defenses to Liability (cont’d)Limited Defenses to Liability (cont’d)

Small Business Liability Relief and Brownsfield Small Business Liability Relief and Brownsfield Revitalization ActRevitalization Act

Signed by President Bush on January 11, 2002Signed by President Bush on January 11, 2002 Significant revision of Superfund lawSignificant revision of Superfund law Two parts of Act:Two parts of Act:

Part 1 – Establishes superfund liability exemptions for Part 1 – Establishes superfund liability exemptions for small businesses and nonprofit organization which small businesses and nonprofit organization which ship only extremely small or ship only extremely small or de micromisde micromis quantities quantities of hazardous substances to a site or whose of hazardous substances to a site or whose contribution consists of “ordinary municipal solid contribution consists of “ordinary municipal solid waste”.waste”.

Part 2 – Establishes first federal statutory brownsfield Part 2 – Establishes first federal statutory brownsfield program which includes federal money for program which includes federal money for remediation of brownsfield sites, liability protection remediation of brownsfield sites, liability protection for new purchasers of contaminated site and more for new purchasers of contaminated site and more support for state brownsfield programs.support for state brownsfield programs.

Fair Housing LawsFair Housing Laws

A.A. Civil Rights Act of 1866Civil Rights Act of 1866 - - prohibits any type of prohibits any type of discrimination based on race. Notable limitations:discrimination based on race. Notable limitations:

a. ONLY applied to discrimination on basis of race.a. ONLY applied to discrimination on basis of race.

b. Applied only to U.S. citizens.b. Applied only to U.S. citizens.

c. Limited to rights enjoyed by white citizens -- c. Limited to rights enjoyed by white citizens -- note, women had no property rights in 1866note, women had no property rights in 1866

Executive Order No. 11063Executive Order No. 11063 – Issued in 1962 by JFK. – Issued in 1962 by JFK. Guaranteed non-discrimination in all housing financed by Guaranteed non-discrimination in all housing financed by government -- insured or guaranteed loans. government -- insured or guaranteed loans.

Jones v. MayerJones v. Mayer -- 1968 Supreme Court decision. Court held -- 1968 Supreme Court decision. Court held that statue intended to bar all racial discrimination, that statue intended to bar all racial discrimination, privateprivate as well as public, in sale or rental of property.as well as public, in sale or rental of property.

Fair Housing Laws (cont’d)Fair Housing Laws (cont’d)

B.B. Civil Rights Act of 1964Civil Rights Act of 1964 - - Prohibits discrimination in any housing Prohibits discrimination in any housing program that receives whole or partial federal funding.program that receives whole or partial federal funding.

C.C. Fair Housing Law of 1968Fair Housing Law of 1968 - - (Title VIII) Unlawful to discriminate on (Title VIII) Unlawful to discriminate on basis of race, color, religion, sex or national origin, disability or basis of race, color, religion, sex or national origin, disability or family status when selling or leasing family status when selling or leasing residentialresidential property by property by means of the actions listed on p. 179.means of the actions listed on p. 179.

NOTE: FHA DOES NOT APPLY TO:NOTE: FHA DOES NOT APPLY TO:

1.1. Sale or rental of single-family home when home is owned Sale or rental of single-family home when home is owned by person who does not own more than three such by person who does not own more than three such homes at one time (therefore, sale by owner of single-homes at one time (therefore, sale by owner of single-family homes not covered.) ANDfamily homes not covered.) AND

Broker or agent not used; ANDBroker or agent not used; AND

Discriminatory advertising not used; AND, in additionDiscriminatory advertising not used; AND, in addition

IF owner is not living in dwelling at time of IF owner is not living in dwelling at time of transaction or was not most recent occupant -- transaction or was not most recent occupant -- ONLY one such sale is exempt from law in any two ONLY one such sale is exempt from law in any two year periodyear period


2.2. Rentals in Owner occupied one-family to four-family Rentals in Owner occupied one-family to four-family dwellings as long as NO discriminatory advertisingdwellings as long as NO discriminatory advertising..

3.3. Religious organizations may limit sale or rental of Religious organizations may limit sale or rental of noncommercial buildings to persons of same religion noncommercial buildings to persons of same religion ONLY IF membership in religion is not restricted on basis ONLY IF membership in religion is not restricted on basis of race, color or national origin.of race, color or national origin.

4.4. Private clubs may limit rental or occupancy of lodgings Private clubs may limit rental or occupancy of lodgings that it owns to membersthat it owns to members..

CompareCompare:: 1866 law prohibits ALL racial discrimination without 1866 law prohibits ALL racial discrimination without exception whereas FHA exempts individual homeowners and exception whereas FHA exempts individual homeowners and certain groups, therefore any aggrieved person may seek a certain groups, therefore any aggrieved person may seek a remedy for remedy for racialracial discrimination discrimination under 1866 law against ANY under 1866 law against ANY homeowner. BUT, if discrimination based on grounds other homeowner. BUT, if discrimination based on grounds other than color, remedy may not be allowed.than color, remedy may not be allowed.


Prohibited acts include:Prohibited acts include: Blockbusting

The attempt to get homeowners to list their property for sale by stating or implying that minority groups may be moving into the neighborhood.

Steering

The attempt to guide prospective homeowners into one neighborhood as opposed to another based on the racial, religious, or ethnic composition of a given neighborhood.

Redlining

Denying a loan or presenting different terms or conditions for a loan based on the composition of the neighborhood or other discriminatory reasons.


D.D. 1972 Amendment to FHA1972 Amendment to FHA

1.1. Brokers must display equal opportunity poster which Brokers must display equal opportunity poster which can be obtained from HUDcan be obtained from HUD

2.2. Failure to display poster constitutes prima facie Failure to display poster constitutes prima facie evidence of discrimination if broker is investigated for evidence of discrimination if broker is investigated for discriminatory practices by HUDdiscriminatory practices by HUD

E.E. 1988 Amendment to FHA1988 Amendment to FHA – provided for more effective – provided for more effective enforcement mechanisms; and provided protections for the enforcement mechanisms; and provided protections for the disabled and for families.disabled and for families.


F.F. Americans with Disabilities ActAmericans with Disabilities Act - - Prohibits discrimination. Prohibits discrimination. based on disabilities in employment, provision of based on disabilities in employment, provision of government. services, transportation provided by public or government. services, transportation provided by public or private entities, places of public accommodation and private entities, places of public accommodation and commercial facilities avail. to public.commercial facilities avail. to public.

G.G. State and Local LawsState and Local Laws - If a state or municipality - If a state or municipality has a fair housing law that has been ruled has a fair housing law that has been ruled "substantially" equivalent to federal law, all "substantially" equivalent to federal law, all complaints in that state or locality, including complaints in that state or locality, including those filed with HUD, are handled by state those filed with HUD, are handled by state enforcement agencies. enforcement agencies.

Eminent DomainEminent Domain


Describes Describes right of government to acquire privately right of government to acquire privately owned real estate for use and benefit of general owned real estate for use and benefit of general public. Federal government's right to eminent public. Federal government's right to eminent domain is recognized by 5th Amendment. 14th domain is recognized by 5th Amendment. 14th Amendment requires states to comply with 5th Amendment requires states to comply with 5th AmendmentAmendment..

Eminent Domain (cont’d)Eminent Domain (cont’d)

Process:Process:Government brings condemnation suit and serves Government brings condemnation suit and serves notice on parties with interests in affected propertynotice on parties with interests in affected property..

1.1. Court decides if proposed use is a public use - No Court decides if proposed use is a public use - No concrete definition of what public use is. Courts concrete definition of what public use is. Courts will generally NOT question decision of federal will generally NOT question decision of federal government to condemn a certain parcel,government to condemn a certain parcel,

ANDAND

2.2. Amount of just compensation which must be paid Amount of just compensation which must be paid to each owner. Courts determine Fair Market Value to each owner. Courts determine Fair Market Value based on most profitable use of land, even if land based on most profitable use of land, even if land not currently being used for that purpose.not currently being used for that purpose.

Eminent Domain (cont’d)Eminent Domain (cont’d)

Takings take two formsTakings take two forms::

1.1. Government's physical taking of individual's land.Government's physical taking of individual's land.

2.2. Land use regulation which causes severe Land use regulation which causes severe economic burden to property owner. (i.e., some economic burden to property owner. (i.e., some argue federal and state environmental argue federal and state environmental regulations). Government regulates property in a regulations). Government regulates property in a manner that restricts owner’s use and enjoyment. manner that restricts owner’s use and enjoyment. Recent Supreme Court decisions have upheld the Recent Supreme Court decisions have upheld the rights of property owners against unreasonable rights of property owners against unreasonable government regulations. government regulations.

EasementsEasements

Definition: An interest in land which gives the Definition: An interest in land which gives the owner the right to use real estate owned by owner the right to use real estate owned by another for a specified purpose.another for a specified purpose.

Holder does not have an Holder does not have an ownershipownership interest interest in in property, only a property, only a right to useright to use. . These rights These rights include:include:

1.1. Use and enjoy land on limited basis.Use and enjoy land on limited basis.

2.2. Entitled to protection from third parties.Entitled to protection from third parties.

3.3. Easement owner NOT subject to will of owner of Easement owner NOT subject to will of owner of land as with license holderland as with license holder

4.4. Easement can be conveyed.Easement can be conveyed.

5.5. Easement can be created in ways other than by Easement can be created in ways other than by written agreement.written agreement.

Easements (cont’d)Easements (cont’d)

3 Different Ways Property Can Be Used:3 Different Ways Property Can Be Used:1.1. EASEMENTEASEMENT

X owns property in fee simple, grants right-of-way X owns property in fee simple, grants right-of-way easement to Y. Gives Y an easement, NOT a easement to Y. Gives Y an easement, NOT a possessory interest in X's property. possessory interest in X's property. Y may use road, but may NOT stop others from Y may use road, but may NOT stop others from

using it except to extent their use prevents Y’s full using it except to extent their use prevents Y’s full enjoyment.enjoyment.

X, as possessor, may exclude all others, except Y, X, as possessor, may exclude all others, except Y, even though crossings pose no harm to X.even though crossings pose no harm to X.

X may use road as long as it does not interfere X may use road as long as it does not interfere with Y.with Y.

Easements (cont’d)Easements (cont’d)

2.2. LEASELEASE

X leases road to Y – X transfers FULL possession X leases road to Y – X transfers FULL possession to Y, therefore Y can exclude X and all others to Y, therefore Y can exclude X and all others from road during term of lease.from road during term of lease.

3.3. LICENSELICENSE

X grants Y a right-of-way for 10 years. Gives Y a X grants Y a right-of-way for 10 years. Gives Y a license -- NOT an interest in X’s property, and X license -- NOT an interest in X’s property, and X may rescind at any time, but may be subject to may rescind at any time, but may be subject to contract remedies for breach.contract remedies for breach.

Types of EasementsTypes of Easements

Affirmative and Negative EasementsAffirmative and Negative Easements AffirmativeAffirmative - owner of easement has right to - owner of easement has right to

use land that is subject to easement. (i.e., use land that is subject to easement. (i.e., construct sewer tunnel, walk on it.)construct sewer tunnel, walk on it.)

NegativeNegative - owner of easement can prevent - owner of easement can prevent owner of land from performing certain acts on owner of land from performing certain acts on land. (i.e., negative easement to prevent sun.)land. (i.e., negative easement to prevent sun.)

Types of Easements (cont’d)Types of Easements (cont’d)

Easements Appurtenant and In GrossEasements Appurtenant and In Gross

AppurtenantAppurtenant -- an easement which benefits easement an easement which benefits easement owner in that easement owner uses land appurtenant to owner in that easement owner uses land appurtenant to his land. Must have two tracts of land owned by his land. Must have two tracts of land owned by different parties. Two tracts need NOT adjoin, though different parties. Two tracts need NOT adjoin, though they generally do.they generally do.

Servient estateServient estate -- tract over which easement runs. -- tract over which easement runs.

Dominant estateDominant estate -- tract which benefits from easement. -- tract which benefits from easement.

Is ALIENABLE and can be SUBDIVIDEDIs ALIENABLE and can be SUBDIVIDEDEasement appurtenant is considered PART of the dominant estate. If dominant estate is conveyed, easement passes with title; HOWEVER, title to actual land over which easement runs is retained by owner of servient estate -- such as easement, "runs with the land.“

Types of Easements (cont’d)Types of Easements (cont’d)

In GrossIn Gross -- personal interest in or right to use land of personal interest in or right to use land of another that is NOT appurtenant to ownership or another that is NOT appurtenant to ownership or possession of real estate.possession of real estate.

- ONLY have servient estate, no dominant estate.- ONLY have servient estate, no dominant estate.

1.1. Right to Convey Easement in Gross (Alienability) -- Right to Convey Easement in Gross (Alienability) -- this right connected to the easement is dependent this right connected to the easement is dependent on whether the easement is commercial or on whether the easement is commercial or noncommercial.noncommercial.

2.2. Subdivision or Apportionment of Easement in Gross Subdivision or Apportionment of Easement in Gross -- If easement in gross is transferable, can it be sold -- If easement in gross is transferable, can it be sold to more than one buyer? Look at intent of parties to more than one buyer? Look at intent of parties of original easement agreement.of original easement agreement.

Public Road

Easementin Gross

Easement AppurtenantEasement

Appurtenant

LOT ALOT B

The Owner of Lot B has an appurtenant easement across The Owner of Lot B has an appurtenant easement across Lot A to gain access to the lake. Lot B is dominant and Lot Lot A to gain access to the lake. Lot B is dominant and Lot A is servient. The utility company has an easement in A is servient. The utility company has an easement in gross across Lot B for the power lines. Note that Lot A also gross across Lot B for the power lines. Note that Lot A also has an appurtenant easement across Lot B for its has an appurtenant easement across Lot B for its driveway. Lot A is dominant and Lot B is servient.driveway. Lot A is dominant and Lot B is servient.

Prescriptive EasementsPrescriptive Easements

Definition: ADefinition: Acquiring right to use land NOT by cquiring right to use land NOT by express agreement or agreement between express agreement or agreement between parties, BUT by lapse of time and certain use parties, BUT by lapse of time and certain use

of property during that time.of property during that time.

Prescriptive Easements - RequirementsPrescriptive Easements - Requirements

1.1. Use must be Use must be ADVERSEADVERSE (hostile, open, notorious and (hostile, open, notorious and visible) -- no permission by Owner -- NOT a visible) -- no permission by Owner -- NOT a neighborly accommodation. (i.e., X's driveway used neighborly accommodation. (i.e., X's driveway used by Y to get car into Y's backyard. Never got X's by Y to get car into Y's backyard. Never got X's permission. Prescriptive easement, not a neighborly permission. Prescriptive easement, not a neighborly accommodation.)accommodation.)

HOSTILEHOSTILE -- User does not recognize that Owner of land -- User does not recognize that Owner of land has authority to prevent his use -- use is hostile in that has authority to prevent his use -- use is hostile in that he does not recognize authority of Owner. i.e., Y he does not recognize authority of Owner. i.e., Y never thought X could prevent his use of driveway.never thought X could prevent his use of driveway.

OPEN, NOTORIOUS, VISIBLEOPEN, NOTORIOUS, VISIBLE -- Use must be open, -- Use must be open, notorious and visible so that Owner would learn about notorious and visible so that Owner would learn about it if he kept informed about his property through it if he kept informed about his property through ordinary inspections.ordinary inspections.

Prescriptive Easements – Requirements Prescriptive Easements – Requirements (cont’d)(cont’d)

2.2. Use must be continuous and uninterrupted for the Use must be continuous and uninterrupted for the required period. (i.e., occasional entries on required period. (i.e., occasional entries on neighbor's land DO NOT ripen into a prescriptive neighbor's land DO NOT ripen into a prescriptive easement.)easement.)

ILLUSTRATIONSILLUSTRATIONS A owns house -- constructs garage. Builds driveway A owns house -- constructs garage. Builds driveway

over part of B's lot without B's permission. After 20 over part of B's lot without B's permission. After 20 years has prescriptive easement.years has prescriptive easement.

A builds driveway over B's land -- uses it for five years A builds driveway over B's land -- uses it for five years without B's permission. A sells land to C -- uses for 5 without B's permission. A sells land to C -- uses for 5 years. C sells to D -- uses for 10 years. D now has years. C sells to D -- uses for 10 years. D now has prescriptive easement. Prescriptive uses of A, B, C prescriptive easement. Prescriptive uses of A, B, C and D can be and D can be tackedtacked -- since easement benefits TRACT -- since easement benefits TRACT A -- becomes easement appurtenant.A -- becomes easement appurtenant.

Creation of EasementsCreation of Easements

EXPRESSEXPRESSMust satisfy formal requirements – in writing, signed, Must satisfy formal requirements – in writing, signed, witnessed and recordedwitnessed and recorded

IMPLIEDIMPLIED

1.1. By Reference to By Reference to Easement or to PlotEasement or to Plot -- where legal -- where legal description identifies road or path as boundary and description identifies road or path as boundary and Grantor owns fee in such path, easement in path passes Grantor owns fee in such path, easement in path passes to Grantee.to Grantee.

2.2. By Prior UseBy Prior Use -- Parties situated in such a way that -- Parties situated in such a way that easement could have been granted or reserved by easement could have been granted or reserved by express language, BUT NO STATEMENT made. Commonly express language, BUT NO STATEMENT made. Commonly occurs when owner of two tracts of land sells or occurs when owner of two tracts of land sells or mortgages one tract and does not mention an easement, mortgages one tract and does not mention an easement, BUT as a result of transaction, an easement is created.BUT as a result of transaction, an easement is created.

3.3. By NecessityBy Necessity

Easement by EstoppelEasement by Estoppel

If owner of servient estate allows user to make If owner of servient estate allows user to make improvements re: use, servient owner is estopped improvements re: use, servient owner is estopped from denying existence of easement.from denying existence of easement.

ILLUSTRATION:ILLUSTRATION:

X owns sewer and water pipes in street running past his X owns sewer and water pipes in street running past his house and vacant land he owns. - sells lot to Y, but says house and vacant land he owns. - sells lot to Y, but says nothing of pipes. Y builds house and X without objection nothing of pipes. Y builds house and X without objection watches Y tie into sewer and water pipes. Easement to watches Y tie into sewer and water pipes. Easement to use sewer and water created by estoppel.use sewer and water created by estoppel.

Extent of EasementsExtent of Easements

General RuleGeneral Rule: Scope of use is determined by : Scope of use is determined by how and for what reason the easement was how and for what reason the easement was created.created.

Owner of easement cannot materially Owner of easement cannot materially increase burden on servient estate or increase burden on servient estate or impose a new and additional burden.impose a new and additional burden.

1.1. If conditions for use specifically provided in If conditions for use specifically provided in easement, use is limited to that use and those easement, use is limited to that use and those which are necessary to its proper enjoyment.which are necessary to its proper enjoyment.

2.2. General grant however, may be used any way as General grant however, may be used any way as long as it is reasonable.long as it is reasonable.

Extent of Easements (cont’d)Extent of Easements (cont’d)

Easement AppurtenantEasement Appurtenant - used only for benefit of - used only for benefit of dominant estate. May not be used for benefit of any other dominant estate. May not be used for benefit of any other tract of land. Thus, land acquired by owner of dominant tract of land. Thus, land acquired by owner of dominant estate AFTER creation of easement, has no right to use estate AFTER creation of easement, has no right to use easementeasement..

− Note situations regarding development and subdivision of Note situations regarding development and subdivision of dominant estate.dominant estate.

Easement by PrescriptionEasement by Prescription - use of easement after - use of easement after prescriptive period must remain almost the same as use at prescriptive period must remain almost the same as use at the beginning of prescriptive period. (i.e., private right-of-the beginning of prescriptive period. (i.e., private right-of-way acquired by prescription is limited to uses made during way acquired by prescription is limited to uses made during prescriptive period. Prescriptive easement to carry water in prescriptive period. Prescriptive easement to carry water in open ditch over another's property, does not include the open ditch over another's property, does not include the right to carry same quantity in covered pipes in a closed right to carry same quantity in covered pipes in a closed ditch).ditch). No different or materially greater use may be made No different or materially greater use may be made of easement except by further adverse use for a of easement except by further adverse use for a prescriptive period (i.e., in first example--if G continued to prescriptive period (i.e., in first example--if G continued to ride motorcycle for another 10 years--would have ride motorcycle for another 10 years--would have prescriptive easement to ride motorcycle.) prescriptive easement to ride motorcycle.)

Extent of Easements (cont’d)Extent of Easements (cont’d)

Easement by Prior UseEasement by Prior Use - Look to prior use, - Look to prior use, may use easement for uses which existed at may use easement for uses which existed at time original estate was severed AND all uses time original estate was severed AND all uses reasonably contemplated by parties.reasonably contemplated by parties.

Easement by NecessityEasement by Necessity - Lasts as long as - Lasts as long as there is a necessity.there is a necessity.

Express easementsExpress easements - Usually provided by - Usually provided by terms.terms.

Use by Easement OwnerUse by Easement Owner

Since easement is a RIGHT to use another's land for a Since easement is a RIGHT to use another's land for a specific specific PURPOSEPURPOSE, easement owner must use , easement owner must use easement premises easement premises onlyonly for that purpose. (i.e., If X for that purpose. (i.e., If X grants Y an easement for ingress and egress over part grants Y an easement for ingress and egress over part of X’s land, Y has no right to lay gas pipes in the of X’s land, Y has no right to lay gas pipes in the easement.)easement.)

Also, use by easement owner must not interfere with Also, use by easement owner must not interfere with landowner's use. (i.e., If X gives Y a driveway landowner's use. (i.e., If X gives Y a driveway easement over X’s land, X does not expect Y to park in easement over X’s land, X does not expect Y to park in X’s driveway all night and prevent X from entering X’s X’s driveway all night and prevent X from entering X’s garage.)garage.)

Duty to RepairDuty to Repair

If X gives Y an easement over X’s property, who has If X gives Y an easement over X’s property, who has duty to keep it in repair? duty to keep it in repair?

1.1. The fact that X gave an easement does not impose The fact that X gave an easement does not impose duty on X, the servient tenant, to repair easement. duty on X, the servient tenant, to repair easement.

2.2. Parties could agree in express easement who would Parties could agree in express easement who would be responsible. be responsible.

3.3. If no express agreement, easement owner does have If no express agreement, easement owner does have duty to make easement useable – e.g., to repair duty to make easement useable – e.g., to repair existing road, trim encroaching trees, remove existing road, trim encroaching trees, remove impediments. impediments.

4.4. In order for easement owner to perform duty to In order for easement owner to perform duty to repair, has right to enter servient estate at all repair, has right to enter servient estate at all reasonable times to make repairs and maintenance. reasonable times to make repairs and maintenance. This right called a "secondary easement" -- may be This right called a "secondary easement" -- may be

used only when necessary and in a reasonable used only when necessary and in a reasonable manner so as to NOT burden owner of servient estate. manner so as to NOT burden owner of servient estate.

Duty to Repair (cont’d)Duty to Repair (cont’d)

5.5. If both easement owner and landowner use road -- If both easement owner and landowner use road --

they share costs in proportion to use of road. they share costs in proportion to use of road.

6.6. If easement owner allows right-of-way to fall into If easement owner allows right-of-way to fall into disrepair, no right to travel along another route. disrepair, no right to travel along another route.

BUT:BUT:

7.7. If Landowner impedes easement owner from If Landowner impedes easement owner from using easement, easement owner may travel using easement, easement owner may travel around obstruction and over other land belonging around obstruction and over other land belonging to landowner.to landowner.

Termination of EasementsTermination of Easements

MergerMerger – When a single Owner acquires both servient and – When a single Owner acquires both servient and dominant estatesdominant estates

Expiration of PeriodExpiration of Period – Express easements freq. Have term – Express easements freq. Have term -- when term expires, easement expires-- when term expires, easement expires

Release Release

AbandonmentAbandonment – Requirement of intent – Requirement of intent

Destruction of Servient EstateDestruction of Servient Estate

Suit to Quiet TitleSuit to Quiet Title

CondemnationCondemnation

Cessation of PurposeCessation of Purpose – Terminates when purpose no longer – Terminates when purpose no longer existsexists

Cessation of NecessityCessation of Necessity – Applies to easements implied by – Applies to easements implied by necessitynecessity

QuizQuiz

Multiple ChoiceMultiple Choice1.1. An easement created when a person adversely uses An easement created when a person adversely uses

the property of another for a statutorily specified time the property of another for a statutorily specified time period is period is

a.a. an appurtenant easementan appurtenant easementb.b. an easement in grossan easement in grossc.c. a prescriptive easementa prescriptive easementd.d. none of the abovenone of the above

2.2. If someone wants to file a complaint with HUD for an If someone wants to file a complaint with HUD for an alleged fair housing violation, he/she must do so alleged fair housing violation, he/she must do so within this time periodwithin this time period

a.a. within 1 year from the date the alleged violation occurredwithin 1 year from the date the alleged violation occurredb.b. within 2 years from the date the alleged violation within 2 years from the date the alleged violation

occurredoccurredc.c. within 3 years from the date the alleged violation within 3 years from the date the alleged violation

occurredoccurredd.d. none of the abovenone of the above

CC

AA

Quiz (cont’d)Quiz (cont’d)

3.3. Suppose the operating budget of Any County has Suppose the operating budget of Any County has been approved and the budget projects been approved and the budget projects expenditures of $40,000,000 for the next fiscal expenditures of $40,000,000 for the next fiscal year. It is estimated that $10,000,000 in revenue year. It is estimated that $10,000,000 in revenue can be culled from sources other than real can be culled from sources other than real property taxes. The assessed value of all real property taxes. The assessed value of all real property in Any County is $2,000,000,000. The property in Any County is $2,000,000,000. The homestead tax exemption in Any County is homestead tax exemption in Any County is $10,000, and 20,000 properties are eligible and $10,000, and 20,000 properties are eligible and have applied for the exemption. The tax rate will have applied for the exemption. The tax rate will bebe

a.a. .0110.0110

b.b. .0120.0120

c.c. .0175.0175

d.d. none of the abovenone of the above

DD


4.4. The Fair Housing Act of 1968 pertains to all of the The Fair Housing Act of 1968 pertains to all of the following exceptfollowing except

a.a. a single-family dwelling sold by the owner without a single-family dwelling sold by the owner without the use of a real estate brokerthe use of a real estate broker

b.b. all houses owned by a person who owns three or all houses owned by a person who owns three or more housesmore houses

c.c. all multifamily dwellings with five or more unitsall multifamily dwellings with five or more unitsd.d. none of the abovenone of the above

5.5. Denying a loan or presenting different terms or Denying a loan or presenting different terms or conditions for a loan based on the composition of conditions for a loan based on the composition of the neighborhood or other discriminatory reasons the neighborhood or other discriminatory reasons is calledis called

a.a. redliningredliningb.b. steeringsteeringc.c. blockbustingblockbustingd.d. none of the abovenone of the above

AA

AA


True/FalseTrue/False

6.6. The right of reversion of title to private property in The right of reversion of title to private property in their jurisdictions given to state and local their jurisdictions given to state and local governments is known as eminent domain.governments is known as eminent domain.

7.7. Permission given to a property owner to use Permission given to a property owner to use property for a use undesignated in that area is property for a use undesignated in that area is referred to as a nonconforming use.referred to as a nonconforming use.

8.8. The Comprehensive Environmental Response The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) imposes Compensation and Liability Act (CERCLA) imposes liability for hazardous waste cleanup of toxic sites, liability for hazardous waste cleanup of toxic sites, regardless of cost or degree of responsibility for regardless of cost or degree of responsibility for the presence of hazardous waste on the property.the presence of hazardous waste on the property.

FF

FF

TT


True/FalseTrue/False

9.9. The property providing access to a main road to a The property providing access to a main road to a landlocked property owner is referred to as the landlocked property owner is referred to as the dominant estate.dominant estate.

10.10. A utility easement is an example of an easement A utility easement is an example of an easement in gross.in gross.TT

FF

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