Easements

Prescriptive easements do not actually require “exclusive” use no matter what courts say

/ Adverse Possession, Easements, Servitudes

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …

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Vermont Supreme Court denies reserved easements implied from prior use unless they are strictly necessary

/ Easements, Real Estate Transactions, Servitudes

While owners can generally get an easement by necessity to obtain access to landlocked land over remaining lands of the grantor, most states also recognize easements implied from visible, continuous prior use before the parcels were separated if the access is helpful (“reasonably necessary”) to the dominant estate. The prior use doctrine rests on the right to reform a deed because of mutual mistake. Such easements can arise by grant (giving an easement to the grantee/buyer) or reserved by the grantor/seller. However, the Vermont Supreme Court has held in the case of Greenfield v. Luce, 2022 WL 16848175, 2022 Vt. Unpub. LEXIS 97 (Vt. Nov. 10, 2022) that it will find an easement to be reserved unless it is necessary to access a landlocked estate. Most states have a stricter test for easements by reservation because they “derogate from the grant” and the buyer should not be surprised to find that …

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Scope of easement to operate a neighboring golf course determines whether intrusion of dozens of golf balls a year to victims’ property constitutes a trespass

/ Condominiums and Homeowners Associations, Easements, Servitudes, Trespass

A couple that bought a home next to a golf course sued the golf course for trespass because of all the golf balls that landed on their property. Although the golf course attempted to take remedial measures to stop golf balls from landing on the couple’s property, roughly 90 balls would land on the property each year, a dozen of which struck the house. The couple won in the trial court which awarded them $100,000 in compensatory damages for property damage and $3.4 million in emotional distress damages. The trial court also issued an injunction preventing play on the 15th hole under the golf club implemented additional remedial measures, such as reconfiguring the hole or installing netting. The Supreme Judicial Court of the Commonwealth of Massachusetts reversed and remanded the case to the trial court for more proceedings. Tenczar v. Indian Pond Country Club, Inc., 2022 WL 17813649, — N.E.3d — (Mass. 2022). …

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No prescriptive easements for light and air

/ Easements, Nuisance, Servitudes

Re-affirming a longstanding common law rule, a Maryland court has held that land use that interferes with a neighbor’s desire for unobstructed light and air neither constitutes a nuisance nor can the neighbor acquire such rights by prescription. Gestamp Wind N. Am., Inc. v. All. Coal, LLC, 2021 WL 3612747 (Md. Ct. Spec. App. 2021). A neighbor whose wind turbines were losing effectiveness because the neighbor was piling coal remains on its property could not get a remedy for the change in wind to run those turbines since the neighbor had a right to use its property without regard to any interference with the neighbor’s light and air.

Covenants can burden future interests, at least where environmental protection is concerned

/ Easements, Environmental Law, Servitudes

A California appellate court interpreted a conveyance to include both a fee simple subject to condition subsequent with a right of entry in the grantor and a conservation easement limiting the property as “natural open space.” While it is not clear the court interpreted the conveyance correctly, it is significant that the court found that an easement (or covenant) can coexist with a right of entry. If structured correctly, such a conveyance would mean that a grantor can both require title to be forfeited to the grantor (or its assignees) if the current possessor violates a conservation condition and can bind the grantor or its assignees who exercise the right of entry with the same condition in the form of an easement or covenant. Canyon Vineyard Estates I, LLC v. DeJoria, 2022 WL 1183373 (Cal. Ct. App. 2022). One might think that the grantor must choose between imposing an easement or …

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Not a regulatory taking and no compensation due when a town acquires an easement by prescription

/ Adverse Possession, Easements

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a town can acquire an easement by prescription and that, if it does, no just compensation is due because no regulatory taking has occurred. Rather, the landower failed to object by suing for trespass or to give permission so the statute of limitations for ejecting the intrusion passed and the owner’s right to exclude was limited by statute and the doctrine of easement by prescription. The town did not “take” the property; the owner lost property rights by failing to take steps required by law to preserve those rights. Gentili v. Town of Sturbridge, 140 N.E.3d 391 (Mass. 2020).

Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

/ Easements, Servitudes

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes — in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this approach, finding this kind of use to exceed the scope of the original easement, see Marcus Cable Associates v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002), but most courts that have addressed the question have agreed that a right to pass electric lines over property includes the right to pass lines for other purposes, such as cable television. This was true even though the original easement stated in its text that the easement was to place lines “for the transmission, distribution and delivery of electrical energy” — a type of use that does not extend to Internet …

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Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

/ Easements, Servitudes

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes — in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this approach, finding this kind of use to exceed the scope of the original easement, see Marcus Cable Associates v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002), but most courts that have addressed the question have agreed that a right to pass electric lines over property includes the right to pass lines for other purposes, such as cable television. This was true even though the original easement stated in its text that the easement was to place lines “for the transmission, distribution and delivery of electrical energy” — a type of use that does not extend to Internet …

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Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

/ Easements, Servitudes

The Pennsylvania Supreme Court granted an owner an easement by necessity even though the land contained a small strip connecting the land to a public way. Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) (applying the Private Roads Act, 36 Pa. Stat. §§2731-2891. It did so on the ground that access need not be strictly necessary to get to the land for an easement by necessity to exist. All the owner need show is that access is not available that would allow ordinary uses of the property if the easement by necessity is not recognized. In this case, While mere inconvenience is not enough to show necessity, neither must the land be completely landlocked to take advantage of the doctrine of easement by necessity. “The central inquiry is whether, absent the recognition of an easement, the … dominant estate will be left without a means of ingress and egress, rendering the …

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