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Easements

Understanding Easement Creation

Understanding Easement Creation

Easements by necessity must meet varying qualifying requirements in different states. These factors can deal with the compensation for the land owner where the easement is created, as well as the size of the easement created to provide access. Easements by necessity relate to an easement that is created for the access by a neighbor over the real property of another owner to reach a public street. This will allow the owner of the blocked real property the full intended use of his property.
The access that an easement by necessity grants is not a private one, but rather known as quasi-private. This related to the use of the land by the person as an access passage, but with certain regulations. These regulations may deal with the concealment of the passage, as well as the size of it. For example, it would most likely not allow for a canopy style walkway to be placed across the property, but rather a stone walkway or blacktop. 
The regulations of that state and municipality could control the size of the walkway (not in length however.) The regulation can control the size in width of the walkway. This would allow the real property owner (where the easement would exist) some control over the easement itself. Since the easement is necessary for the neighbor to access the street, it cannot be argued, but at least the size of it can be controlled on a property. 
This may prevent the easement holder from building a path that is the width of a typical driveway. If a driveway is needed however, then that can be built as well, with the width of it being regulated. The point the requirements try to make is that they want to prevent the abuse of the easement holder during construction. This allows the property owner, the right to still hold most of his land, have some sort of say over the amount that’s used, and control how far the neighbor may access into their property boundaries.
Through an easement by necessity, the requirements must be clear and prove that the person attempting to create the easements, needs access to the public street over the property of the neighbor. This means that the need for access must be essential, and apparent to that of the holder of the easement.
Once the determination has been made, then the easement by necessity could be created on the real property of the neighbor, pending that all the requirements have been met in regulation with the state guidelines. The owner of the real property where the easement exists receives compensation for his consenting the use of the land for the neighbors needs through easement. The amount of compensation also varies among states, but is fitting to the type of easement and the amount of land used.

Using an Express Grant to Create an Easement

Using an Express Grant to Create an Easement

There are four ways through which an easement may be created. For starters, an express grant refers to the granting of permission, by the owner of the land where the easement would lie. This grantor must be the sole and actual owner of that real property in order to grant the easement with rightful use of it. Such action would allow for the easement to be created, under some regulations.
In such a case, the easement must be a written document and meet certain guidelines in order to be made official. Similar to a deed of a property it must contain the name of the property owner which is requesting the easement, as well as the owner of the property where the easement is to be created. Once created, the witnessed process will consist of the easement being signed by the grantor, giving his or her consent and permission for the use of land. In addition, the easement must be notarized and furthermore conveyed to the owner it has been granted to.
A typical example an easement granted by express grant, would be an individual who requests access to build a walkway on his neighbor’s property. Perhaps the property of a neighbor A is situated somewhat in back of, and to the side of neighbor B.  Neighbor A has a private road allowing vehicles to enter and exit the property, but no walkway to access the actual property safely without walking on the road. The way neighbor A would go about gaining the right of access to build this walkway on the opposing property, would be to ask the property owner for a grant. If the owner (neighbor B) complies, then he or she would follow the process stated above in regards to documenting the easement in a written contract. 
Both neighbor A and neighbor B would be mentioned in the contract, neighbor A being the grantee, and neighbor B the grantor. Once the document has been signed by both parties, witnessed, and notarized, it becomes active. The grantee holds onto the easement, and could commence the construction of his or her new walkway. If neither a walkway or a driveway existed in the matter and the land owner was landlocked through property, then an easement could be passed by right of way. Right of way grants just that, an access route privilege to the property owner over the property of another, to access an entrance/exit to their own property. The route can reach a public street that would lead them out to a general part of the municipality or a highway. 
The grantor in this case can grant the easement for the length of their ownership over the property to the grantee, not anytime longer. This specifies the life of the easement created through an express grant.

Implied Easement Defined

Implied Easement Defined

Easements that are created in relation to the actions of the parties involved in an easement, rather than a written document or agreement, are known as implied easements. Implied easements are solely created when there is a transfer of land entailed. 
An example would be, a person who owns a real property which has been granted an easement on another property-for example a driveway through a neighbors property. This same owner decides they want to sell their property to a new person. Along with the sale of property, there is an implication that the easement that the previous owner was granted, will be transferred over to the new owner. This would grant the new property owner the right of access over that easement shared by the previous one. 
This would be known as an implied easement. There is also an implication of easement if a property owner owning two parallel property lots, decides to sell the landlocked one. By selling the property, that is blocked off from road access by another property ( of the same owner), the owner has to give access to the new owner, through his property, to the road. This is an implied easement over the property, because the implication exists that the landlocked owner needs a means to access the road as well as their property from the road. The implied easement is created over the property that is closest to the road.
The reasoning behind the implied easement when it comes to the transfer of a property from one owner to another, that has been granted an easement over another, deals with the luxuries. This deals with the transfer of benefits that the land had to the previous owner, being granted to the new owner, so that they may also get the full use of the property to the fullest extent. This allows the new owner of a property to enjoy the privileges entitled to that property through an easement granted through the actions of the previous owner. The right is simply given to the new owner, long with any other uses the property entails. 

Everything You Must Know About Easements

Everything You Must Know About Easements

Creation:
Easements are created to give a person or organization a use over that of a private property for a specific purpose. This purpose may or may not benefit the owner of the easement, but could be crucial to a certain function. Easements can be created through a few different means, such as: express grant, implication, prescription, and necessity. Basically, easements can be created with the permission and consent of the owner, or there can be a simple implication for the need of an easement to enjoy the full use of a property. An easement can be prescribed with the use of the land without the permission of the owner, if continued for a certain duration without interruption, or can simply be granted due to the need of a land owner to access a public street.
Express Grant 

An easement created by express grants deals with the permission and consent of the owner of the property where the easement would be located. This type of easement can be granted by the owner of that real property, generally known as the grantor. This person is also referred to as a servient tenement in an appurtenant easement. The grantee would be the person that holds the easement, who is identified as the dominant tenement.  The dominant tenement can transfer an easement when a change in ownership occurs if they should choose to sell their land.  This is not always the case for the servient tenement. An easement by express grant must be signed by both tenements, as well as witnessed. Once completed, it must be notarized and it is put into effect, as well as recorded in public records.
IMPLIED EASEMENT 

Implied easements occur within the transfer of a property and are created by implication. This deals with an acquirement of land that requires an easement through the adjacent land owner and it is clear that one should exist when the sale of that land occurred. There is an implication that an easement belongs, and one is created through the actions of the owners of both pieces of property. The implied easements would exist pending that the person who sold the land was the owner of the real property on which an easement was existing or necessary to do so. This can be in the case if a person sells two pieces of land side by side, one on the main road, the other blocked off. If the owner sells the blocked lot, and keeps the other, there is an implied easement that the neighbor would now need to travel across his remaining property to access that road.

Prescriptive Easement 



When a piece of land is used by a person other than the owner, apparent to the owner, that may constitute for a prescriptive easements. The periods of time vary from state to state, but a common one is generally ten years. The person using the land must be using it for a evident purpose, as well as make it known to the land owner that they are using the land, giving that owner a chance to stop them from doing so. 
Also, that person using the land, must continue the use for the period of time without any rest time in between the duration of the state’s required time period. If the owner of the land halts the use by the neighbor due to verbal notice or even posting a fence, then a prescriptive easement will not be created. However, if the owner of that property does not commit any action to interrupt the use by the neighbor for the duration of time that the state has set for prescriptive easements, then that easement will be granted over the land in favor of the person using it. The owner must be completely clear as to the knowledge of the person using the land, meaning it cannot happen without their visual recognition and confirmation as well as during hours where the owner is known to be unavailable. 
An easement that is necessary for the complete use and enjoyment over a piece of land by an owner, is known as an easement by necessity. Such an easement can occur in a right of way situation, where a neighbor needs to access a public street by crossing over the neighbor’s property that is impeding them from doing so. In this case, since the access is essential to that person being able to reach their property from the street as well as the street from their property as an exit route, this would indicate the need for an easement by necessity. Each state has different requirements that it entails for a property quality for this type of easement. 
These requirements can also deal with the size of the easement onto the property owner’s land, as to much it would occupy. For example, if the easement is in the form of a walkway or driveway to provide access to a street, then the width of that passage way would be regulated. This gives a sense of control to the land owner from the neighbor abusing their right to an easement and building over the required amount on their property.  Easements by necessity are usually called quasi-private, due to the access they provide over the owner’s property where they are located.
Termination When an easement is created, it continues its life until it is terminated, in one of the myriad ways it can be.
These means for termination are the following:  expiration of express term, abandonment of easement, merger (land), foreclosure (servient liens or tax foreclosure in some states),  or an express release (termination).  Easements through express grant may have a certain duration of time specified in the easement by the land owner where the easement is located. This can deal with their life, or the life of their estate, as well as regards to transfer of land. With the expiration of that term from when the easement was granted, the easement can terminate.  
Also, when a person using an easement abandons it due to lack of use, or clear abandonment such as removing any fixtures or structures, an easement can be terminated due to its current, clearly non existent need . An easement can also be terminated in the case where the owner of the easement purchases the land on which the easement he has been granted exists. 
Since he has purchased the land where the easement was located, there is no need for an easement on his own property. A foreclosure over a servient property, or the sale of a land due to tax foreclosure can also constitute for a termination of easements.  Now, just like an easement can be created through express grant, it can also be terminated due to express release. This would entitle both parties to similarly sign a contract to terminate the easement, through the same measures and store it in public records where the easement existed.

What are Easements in Gross

What are Easements in Gross

Easements in gross, relate to a type of easement that shows no benefit to a property owner, or to the person holding the easement. The most common example of easements in gross are in the case of utility companies requiring the use of a property to provide their services. This can apply to residential property owners, as well as commercial. The rights and access granted can be above ground, or even underground, depending on the utility company.
A common example could be a new development in or around where a city is being built; this new development will require utilities to reach it. In this case perhaps new power lines will need to be raised, but the property where they would lie could be owned by others, such as buildings, or homes. In order to install these power lines, the utility company in charge of cable, electricity, or both, will request that an easement in gross be created so that they may utilize the property to install such services. Since the installation neither benefits the owner of the property where the easement lies nor the holder of the easement (utility company), this is known to be an easement in gross. 
The same can be said for a company looking to repair a gas line, or perhaps install a new one. They may need access to the area lying underneath several homes, whether the front laws of houses or driveways. In this case the company would request that an easement in gross be created to allow them access to dig the property of these individuals and install or repair the pipes underground. Once the utility company gains this easement, they will be allowed to dig the otherwise private property and commence their work. Some municipalities require that the utility company in such cases, return the property to its prior condition. 
For instance, if they have dug underneath a property where a lawn was present, they may be subject to replace it using sod in accordance with the owner of that property. Or if the land was part of a driveway, they may be required to refill the area where they had dug with concrete or blacktop mix, and in some cases paver stones. This guideline is only required in some areas, and only applied in those specific cases.
Easement’s in gross are irrevocable and will remain so for the duration of the life of the owner. Due to the fact that an easement in gross “attaches” itself to the owner themselves, rather than the land, there is no dominant tenement in the matter. The servient tenement still remains the property on which the easement exists, such as the power lines, underground pipes, etc…

How to Undergo Easement Termination

How to Undergo Easement Termination

There are five ways that an easement could be terminated from existence. They are the following: the expiration of the term (grant); abandonment of easement; a merger; foreclosure of existing servient liens; and express release (or direct termination). Unless one of these is exercised, or occurs, the easement will be continuous and exist indefinitely.
Termination due to the expiration of term deals with an easement given through express grant. This can deal with an owner who has granted the permission of another property owner the easement over the use of his land, for a specific period of time. This can also deal with the term of occupancy of that owner on the land as well. Once the term has expired, then the easement may be terminated. 
Also, the change of use for a property can also relate to an expiration of term. This can be if an easement access passage, previously private, has been modified into a public use passageway, this would end the easement existing. Abandonment termination happens when the user of the easement has been neglected for a certain period of time. The absence from the use of the easement holder, for a determined period of time can decide for that easement to be terminated. In this case the use must be abandoned for the period of time, and also, certain structures that pertained to the easement could be removed showing signs of abandonment. 
Let’s say an easement is built as a walkway out of a county park between two houses, occupying one of the lot’s property. The walkway contains short fencing and maybe even a handrail. If the use of the entrance, or exit passage to the park is clearly discontinued to the point where the fences or handrails may have been removed for a long period of time, the land owners can pose their case that the easement has been abandoned. If proven, not solely through the use, but also through the visible signs with the missing structures, then the easement on that property could be terminated due to abandonment. In the case of a merger, it deals with two owners that hold a land next to each other. 
Land owner A grants an easement to land owner B to access to a road through his own property. Land owner A decides to sell his property, and land owner B decides to purchase it. Since both properties now belong to the easement holder, the easement is no longer necessary. This would constitute an easement termination by merger. Termination of an easement can also come from a foreclosure over a mortgage or deed on a servient property.In various states, a tax foreclosure sale of a servient property can also result in the termination of an existing easement.
Finally, easements can be terminated simply by an written termination contract, or express release. The written release would follow the same guidelines in structure and steps of writing and recording as the original easement. Once completed, the records of such written release would be saved in the county’s public records storage where the easement was held.