YOUR SPEAKER RIGHTS OF WAY AND ENCUMBRANCES IN LAND TONY NETTLEMAN. Surveying All My Life. Began Working with Attorneys.

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1 YOUR SPEAKER Surveying All My Life RIGHTS OF WAY AND ENCUMBRANCES IN LAND TONY NETTLEMAN Began Working with Attorneys Went to College After Private Practice, Came Back Copyright Nettleman Land Surveying, INC (2016/17)

2 COURSE OBJECTIVES Understand all the different ways easements are created Distinguish between the different types of easements, explain their similarities and differences, and give examples of each Correctly use easement terminology to describe elements and attributes of an easement Appreciate the grey areas of easements and how to avoid them as much as possible WHY SHOULD SURVEYORS KNOW EASEMENTS? Easements is one area of real property that enjoys frequent litigation Nationally, over 50% of all easement decisions that are appealed are reversed by appellate courts Explain how easements are (and are not) terminated

3 ABOUT EASEMENTS IN GENERAL EXPRESS EASEMENTS Since easements are real property rights, there is no federal common law But the federal government has enacted some statutes for federal lands Therefore, application of state laws to easements is critical We will examine the general principles in various states via case law

4 PRESCRIPTIVE EASEMENTS IMPLIED EASEMENTS

5 ELEMENTS OF EASEMENTS TIME LOCATION/SIZE WORDS: The NE corner of above lot forming a 25 foot (25 ) circle is reserved for perpetual use as comfort station for canines All dogs regardless of sex, size, age, pedigree or ownership may relieve at will in perpetuity

6 PARTIES COMMON PROBLEMS WITH EASEMENTS BLANKET EASMENT

7 THE SAME PARTY BUY/SELL/XFER? NOT THE INTENDED USE

8 TERMINATING EASEMENTS MERE NON USE? MUTUAL AGREEMENT

9 HISTORY AND BACKGROUND OF EASEMENTS EASEMENTS HAVE HISTORIC SIGNIFICANCE A reproduction of a 3,000 year old deed description on a clay tablet from the Mid East describing boundaries and encumbrances

10 HISTORY AND BACKGROUND OF EASEMENTS KUDURRU Boundary Stone, Babylonia Circa 1100 BC Description is inscribed location, bounds and area Transfer is documented Surveyor is named Property is monumented Curse is included! HISTORY AND BACKGROUND OF EASEMENTS ORIGIN OF TERMS: HIGH WAY The Roman legions created the term when they built their road system The term was used to define the method of constructing their roads that were used to carry the Roman armies throughout the world All roads lead to Rome HISTORY AND BACKGROUND OF EASEMENTS REAL PROPERTY RIGHTS Bundle of Rights or Sticks

11 HISTORY AND BACKGROUND OF EASEMENTS Land Ownership Consists of Whole Bundle Individual Rights that can be held together or as Separate Sticks HISTORY AND BACKGROUND OF EASEMENTS STATUTE OF FRAUDS From English Common Law (1677) HISTORY AND BACKGROUND OF EASEMENTS 2.01 Common law and certain statutes declared in force Timber Possession Ingress Egress Air Subsurface Use Soil Mineral Water Flowage Water Use Surface Use Development Rights Wind TO PREVENT FRAUD: A law in every state which requires that certain documents be in writing Conveyance of real property or rights in real property Leases for more than one year Contracts (some types) Wills The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

12 HISTORY AND BACKGROUND OF EASEMENTS DESCRIPTIONS CONTROLLING ELEMENTS Priority of calls (in descending order) 1. Lines actually run 2. Calls for monuments in a written conveyance 3. Calls for adjoiners 4. Reference to courses 5. Recitation of area REAL PROPERTY RIGHTS SURFACE ESTATE Agriculture Airspace Development Solar Timber Water Wind REAL PROPERTY RIGHTS SUBSURFACE ESTATE Mineral rights Gravel rights Water rights Oil and gas rights

13 HISTORY AND BACKGROUND OF EASEMENTS BUNDLE OF RIGHTS (10) Navigation easement" means any easement which includes all or any part of the following: The right to unobstructed and unrestricted flight of aircraft, in, through and across the airspace over and above certain described land, at the altitude or height above the surface of the land as determined by the DOT The right to enter upon certain described land for the purpose of removing and preventing any use of the land or the construction or erection of any buildings, structures or facilities and the growth of any trees or objects upon the real estate, over, above and across certain described land, other than those uses, buildings, structures, facilities, growths of trees or objects expressly excepted; and The right to prevent the use of the land by any assembly of persons or the use of the land in such a manner as might attract or bring together an assembly of persons on the land HISTORY AND BACKGROUND OF EASEMENTS BUNDLE OF RIGHTS Definitions. A solar collector means any device or combination of devices or elements which rely upon sunshine as an energy source, and which are capable of collecting not less than twenty five thousand BTU's on a clear winter solstice day. The term also includes any substance or device which collects solar energy for use in: The heating or cooling of a structure or building The heating or pumping of water Industrial, commercial or agricultural processes The generation of electricity HISTORY AND BACKGROUND OF EASEMENTS BUNDLE OF RIGHTS Method of claiming; effect; limitations A solar right may be claimed by an owner of real property upon which a solar collector, as defined in Subsection A of Section , has been placed. Once vested, the right shall be enforceable against any person who constructs or plans to construct any structure, in violation of the terms of the Solar Rights Act or the Solar Recordation Act A solar right shall be considered an easement appurtenant, and a suit to enforce a solar right may be brought at law or in equity. The solar right shall be subject to the provisions of the Solar Recordation Act and the Solar Rights Act

14 HISTORY AND BACKGROUND OF EASEMENTS TYPES OF OLD ENGLISH EASEMENTS Right of way (easements of way) Easements of support (pertaining to excavations) Easements of "light and air" Rights pertaining to artificial waterways EASEMENTS OF WAY How Many Types of Route Easements Can You Name? EASEMENTS OF SUPPORT Lateral and subjacent support describes the right a landowner has to have that land and buildings physically supported in their natural state Support may be for: Buildings Land

15 EASEMENTS OF SUPPORT FOR LAND If a neighbor's excavation or excessive extraction of underground liquid deposits causes the neighbor s LAND to cave-in, then Strictly Liable EASEMENTS OF SUPPORT FOR LAND If a neighbor's excavation or excessive extraction of underground liquid deposits causes the neighbor s BUILDINGS to cavein, then Negligent EASEMENTS OF "LIGHT AND AIR"

16 BRITISH RULE OF "LIGHT AND AIR" AMERICAN RULE OF "LIGHT AND AIR" The owner of a building with windows that have received natural daylight for 20 years or more is entitled to forbid any construction or other obstruction that would deprive him or her of that illumination Once a right to light exists, the owner of the right is entitled to "sufficient light according to the ordinary notions of mankind": Colls v. Home & Colonial Stores Ltd (1904). Under United States tort law, in Fontainebleau Hotel Corp. v. Forty Five Twenty Five, Inc. (1959) the Florida Appellate Court stated that the "ancient lights" doctrine had been unanimously repudiated in the United States.

17 EXPRESS EASEMENTS EXPRESSLY CREATING MEANS: Forming a valid contract between two or more parties That meets the Statute to Prevent Frauds So that one or more parties can use the land of another By grant or reservation ELEMENTS OF A CONTRACT Offer Acceptance Consideration In Writing With mutuality of obligation

18 STATUTE TO PREVENT FRAUDS Requires certain kinds of contracts be memorialized in a writing Contracts in consideration of marriage. This provision covers prenuptial agreements Contracts that cannot be performed within one year Contracts for the transfer of an interest in land Contracts by the executor of a will to pay a debt of the estate with his own money Contracts for the sale of goods totaling $ or more Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation EXPRESS CREATION BY GRANT The Grantor Sells an Easement to Fish on the Pond to the Grantee EXPRESS CREATION BY RESERVATION The Grantor Sells His Land to the Grantee but Retains the Right to Dove Hunt on The Property

19 EXAMPLE OF AN EXPRESS EASEMENT EXAMPLE OF AN EXPRESS EASEMENT EXAMPLE OF AN EXPRESS EASEMENT

20 PRESCRIPTIVE EASEMENTS PRESCRIPTIVE EASEMENT BY LOST GRANT Actual With claim of right Open and notorious Continuous For the required time With acquiescence of owner of servient estate ADVERSE POSSESSION VS PRESCRIPTIVE EASEMENT What s the Difference?

21 PRESCRIPTIVE EASEMENT BY LOST GRANT PRESCRIPTIVE EASEMENT BY ADVERSE USE Actual With claim of right Open and notorious Continuous For the required time That was adverse to interest of owner of servient estate PRESCRIPTIVE EASEMENT BY ADVERSE USE

22 IMPLIED EASEMENTS IMPLIED EASEMENT BY STRICT NECESSITY Land in common ownership Severed into two or more parcels Severance creates the need IMPLIED EASEMENT BY STRICT NECESSITY John owned one lot in 2000 John Split the One Lot into Two Lots The Second Lot (A) Had No Road Access when John Sold the Lot to Tom

23 IMPLIED EASEMENT BY STRICT NECESSITY John owned one lot in 2000 John Split the One Lot into Two Lots The Second Lot (A) Had No Road Access when John Sold the Lot to Tom IMPLIED EASEMENT BY QUASI EASEMENT single owner burdened one parcel for the benefit of another the benefit is reasonably necessary for the benefited parcel the burden was apparent at severance the single owner transferred one parcel and retained the other IMPLIED EASEMENT BY QUASI EASEMENT John owned two lots in 2000 John Used a New Road to Easily Access Lot (A) Lot (A) Had Was Sold to Tom

24 LETS TALK EASEMENT TERMS APPURTENANT vs. IN GROSS EXCLUSIVE vs. NON EXCLUSIVE TWO PARTIES DOMINANT SERVIENT Parcel or Person Parcel only AFFIRMATIVE vs. NEGATIVE EXPRESS vs. IMPLIED SPECIFIC vs. GENERAL DOMINANT vs. SERVIENT Benefits from the Easement Must maintain the Easement Burdened by the Easement Can still use the land (usually)

25 APPURTENANT APPURTENANT EASEMENT RUNS WITH THE LAND Dominant estate benefits from the easement and servient estate is burdened by it All easements assumed to be appurtenant until stated otherwise an easement of ingress/egress for J. Brown IN GROSS Easement IN GROSS belongs to an individual Benefits person, not servient estate Not transferrable unless express condition or commercial easement An easement to hunt and fish on Brown Acre, to J. Brown and his heirs APPURTENANT OR IN GROSS? to A, for ingress/egress over my property to A and his heirs, to gain access to Lake Lanier

26 PEVEAR V. HUNT (1996) FACTS Landowners brought action seeking to establish right by prescriptive easement for driveway and parking purposes. Trial court granted motion to dismiss Appeals court reversed! Why? What about appurtenant vs in gross? RULE In an easement appurtenant, there are 2 tracts of land, the dominant tenement, and the servient tenement. The dominant tenement benefits in some way from the use of the servient tenement. Easements in gross are simply a personal interest or right to use the land of another which does not benefit another property, or dominant estate, thus easements in gross usually involve only one parcel.

27 HOLDING In this case, if an easement was granted, it would be considered an easement appurtenant, as there are two tracts of land involved, with the Hunt's land benefiting the Pevear's land. BUT WAIT THERE S MORE What about the presumption An easement to land is favored over an easement in gross in Tennessee. AFFIRMATIVE OR POSITIVE EASEMENT Gives the easement holder the right to perform an act on or use the servant estate to J. Brown, for ingress/egress to J. Brown, to hunt and fish Profit: right to take timber, fish, etc.

28 RESTRICTIVE OR NEGATIVE Use of servient estate is limited or prohibited in some way A may not build a house above 35 feet in height or block B s view of Cold Mountain in any way A may not build any structure within 300 feet of mean high tide along the ocean GENERAL EASEMENT No particular area expressed for the easement J. Smith may use my land to hunt and fish SPECIFIC EASEMENT The scope of use or area is explicitly defined A 20 foot easement as described on plat A An easement of ingress/egress only when J. Smith s road is unusable due to road conditions

29 MASSEY V. GRAF (2008) FACTS Property owners brought action against adjoining property owners, seeking to enforce restrictive covenants applicable to their subdivision against adjoining owners. The Chancery Court, Knox County, Michael W. Moyers, Chancellor, entered summary judgment for adjoining owners and property owners appealed RULE A property owner may sell off parcels of a tract to different persons and may include in the deeds restrictive covenants for the benefit of not only the property owner but also the other persons who buy portions of the tract. In this circumstance, the grantees acquire not an absolute and unqualified title to their respective parcels, but rather a title limited by the restrictions contained in the deed. While some ambiguity exists concerning the technical name of the grantees' interests arising from these restrictive covenants, the interest is now commonly known in Tennessee as a reciprocal negative easement

30 You tell me. HOLDING BUT WAIT THERE S MORE (AGAIN) What about the presumption in this case? EXCLUSIVE Only the person specified in the easement document may use the easement Because restrictive covenants are in derogation of the fundamental right of free use and enjoyment of real property, they are not favored under Tennessee law. An exclusive easement, for high voltage power lines, to Florida Power & Light

31 NON EXCLUSIVE OTHERS MAY USE EASEMENT ALONG WITH PARTIES SPECIFIED IN EASEMENT CONVEYANCE NON EXCLUSIVE USE IS PRESUMED BY COURTS TO THE CITIZENS OF SOME TOWN TO ACCESS SOME LAKE OTTINGER V. STOOKSBURY (2006) FACTS Landowner brought action against adjacent property owner to quiet title to an easement for ingress and egress on landowner's property. Adjacent property owner filed counterclaim asserting an exclusive right to the disputed easement. The Chancery Court permanently enjoined adjacent property owner from interfering with landowner's right to use the easement. Adjacent property owner appealed.

32 RULE There is no TN Rule so what do we do.go to Idaho! When construing a deed the Court should determine the intention of the grantor. This intent is to be ascertained from a consideration of the entire instrument read in the light of the surrounding circumstances. clear evidence standard or preponderance of the evidence standard? If an easement is exclusive, the owner of the servient est ate loses its right to use the easement along with the easement holder. HOLDING landowners' predecessor in interest did not convey an exclusive easement to property owner's predecessors in interest. WHY? It is undisputed that Defendant had the burden to prove that the easement was exclusive. We find no error with the Trial Court's decision that Defendant failed to meet her burden.