Easements

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties […]

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Defeasible easements are enforceable if clearly created

/ Easements, Estates and Future Interests, Servitudes

In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made defeasible and upheld the power of the association to end the easements.

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Easement by necessity can be widened and its uses can be expanded

/ Easements, Servitudes

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant property. An easement created in 1828 was used for road access and transportation of timber. More than a hundred years later, the Virginia Supreme Court not only allowed new methods of transportation to be used (tractor-trailers) but allowed the road to be widened to accommodate the new uses. Because the easement guarantees access to the dominant estate and the ability to use it effectively, the use of the easement can expand to accommodate the new uses to which the dominant estate is put. There is a limitation that the easement cannot be widened in

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An easement granted by a tenant ends when the tenancy terminates

/ Easements, Leaseholds

In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The tenant has no possessory rights once the tenancy terminates and you can only convey what you own.

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Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.

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Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

/ Adverse Possession, Easements, Real Estate Transactions, Trespass

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016).  The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that

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States may not take tribal land by eminent domain

/ Easements, Eminent Domain, Tribal Property

Lands owned by Indian nations and held in trust status cannot be taken by the states by eminent domain, although federal statutory authority allows states to take “allotments” held by the United States in trust for individual tribal citizens for public purposes including utility easements. 25 U.S.C. §357. The Tenth Circuit has held that if the tribe (in this case the Navajo Nation) owns a fractional interest in an allotment, then the state (or its service companies) cannot use eminent domain power to take a utility easement from those allotment owners. Public Serv. Co. of N.M. v. Barboan, 2017 U.S. App. LEXIS 9204 (10th Cir. 2017). The only way to acquire such an easement is for the land to be taken by the eminent domain power of the United States or in a voluntary sale with the consent of the relevant Indian nation and required consent by the United States generally exercised

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Electricity easement held not to encompass use for fiber-optic cable

/ Easements, Real Estate Transactions, Servitudes

While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002).  The Eighth Circuit recently took the minority approach in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017), holding that a rural electric cooperative’s easements did not allow use of fiber-optic cable installed alongside electrical lines to serve the general public. The court emphasized that an easement is a “right to use land for particular purposes,” and interpreted a statute that

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Town’s extension of an easement to the general public overburdens and exceeds the scope of the easement

/ Easements, Real Estate Transactions, Servitudes

The Massachusetts Appeals Court has held that opening an easement to the general public may overburden it when the easement had not previously been used in that manner, giving the owner of the servient estate the chance to prove that the increased use interfered with his retained property rights in the underlying land and exceeded the scope of the rights included in the easement. Goff v. Town of Randolph, 56 N.E.3d 893 (Table), 2016 WL 4258381 (Mass. App. Ct. 2016).

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An easement cannot be used to reach land to which it is not appurtenant

/ Easements, Real Estate Transactions, Servitudes

The Massachusetts Supreme Judicial Court has held that an easement cannot be extended even for a short way to access land to which it is not appurtenant. When an easement is created to enable access to a particular parcel of land, it can be used only for that purpose and not to access other parcels of land even if continguous. Taylor v. Martha’s Vineyard Land Bank Comm’n, 60 N.E>3d 319 (Mass. 2016).

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