Easements

Texas beachfront property rights after hurricanes

/ Easements, Servitudes, Takings, Trespass, Water Rights

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes.  If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the public accessible by anyone. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), challenged a common law rule giving the public access to a new sand area on the beach created by government landfill. While refusing to decide whether a judicial common law ruling could be a taking, the Court …

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Massachusetts courts hostile to easement by necessity doctrine

/ Easements, Real Estate Transactions, Servitudes, Statute of Frauds

In Kitras v. Town of Aquinnah, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the grantor to reach a public road. In most states the doctrine is based both on the implied intent of the grantor and public policy considerations that support access to land both to protect the landlocked owner’s right to access his or her land and general welfare considerations of making the land alienable and usable. However, the emerging majority rule seems to be that the touchstone is the intent of the parties and if the parties actually intend to create a landlocked parcel, they will be allowed to do so, and their arrangement will …

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Prescriptive easement granted for underground utility lines

/ Easements, Title Issues, Trespass

An easement may be acquired by prescription if one engages in visible (“open and notorious”) use of another’s property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription? The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on the land would put a reasonable owner on notice that the lines exist. Dunning v. Larsen, 2015 WL 5920263 (Mass. Land Ct. 2015). In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves …

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Prescriptive easement granted when servient owner knew about but did not interfere with longstanding use of a path to access the waterfront

/ Easements, Servitudes, Trespass

The Massachusetts Land Court granted a prescriptive easement to neighbors who crossed a path on foot or on bicycle to get to the waterfront. Fantoni v. Assad, 2015 Mass. LCR LEXIS 108, 2015 WL 4208469 (Mass. Land Ct. 2015). The owner of the servient estate was aware that neighbors were using the path but did not stop them or object until an altercation broke out when one of the walkers kicked a neighbor’s dog. The court applied the traditional rule presuming the use to be adverse in the absence of any evidence of consent or permission. Once open use is established for the twenty-year statutory purpose, the burden is on the servient owner to show that permission was given for the use. If no permission can be shown by the servient owner, the access is presumed to be adverse. A minority of states now go the other way, presuming that limited use …

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Court finds sufficient evidence that an easement was abandoned

/ Easements, Servitudes

In Mello v. Town of Dighton, 2015 Mass. Super. LEXIS 48 (Mass. Super. Ct. 2015), the Massachusetts trial court found sufficient evidence to conclude that an easement was abandoned. The proof in such cases is high; mere non-use does not constitute abandonment. More direct evidence of intent to abandon is required. In this case, the easement was owned by a railroad and the railroad’s bankruptcy trustees conclusively demonstrated their intent never to make use of the easement by expressly abandoning it and stating that the easement was not needed for the railroad’s operations.

Developer stopped from converting golf course into housing by implied servitude arising out of marketing the golf course as an amenity for nearby homes previously sold by the developer

/ Easements, Servitudes, Statute of Frauds, Title Issues

A developer marketed homes as being next to a golf course with the golf course noted on sales material and the recorded plat. When the developer later tried to convert the golf course into residential lots, the homeowners sued, claiming an implied servitude. Despite the lack of any express covenant in the deeds, the court found the presence of the golf course with the designation as a “golf course” to be sufficient to find the property restricted to golf course purposes. Riverview Cmty. Grp. v. Spencer & Livingston, 337 P.3d 1076 (Wash. 2014). Similar cases include Agua Fria Save the Open Space Ass’n v. Rowe, 255 P.3d 390 (N.M. 2011); Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006).

Texas Supreme Court affirms distinction between easements implied from prior use and easements implied from necessity

/ Easements, Servitudes

The Texas Supreme Court has affirmed that easements by necessity exist when an owner sells a landlocked parcel that has no access to a public road. That owner (and subsequent) owners have a right to go over remaining land of the grantor to access to public way. For such a right to be recognized, there must be no alternative access to a public road. The court also found that it presumes that the parties intended to create such an easement and that evidence to the contrary would defeat the claim. (In contrast, some courts hold that owners have no power to create landlocked parcels even if that is the intent of the parties.) “To successfully assert a necessity easement, the party claiming the easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a …

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House that substantially encroaches on neighboring property is a continuing trespass and neighbor has the right ask for its removal

/ Easements, Servitudes, Trespass

When someone intentionally builds a building or part of a building on land owned by another, the land owner may obtain an injunction ordering removal of the trespassory structure. But when someone innocently builds a structure that encroaches on neighboring property, many courts today applied the undue hardship or relative hardshp doctrine and allow the structure to remain on the ground that land owner is partly at fault for not noticing the incursion and stopping it before substantial expense is undertaken by the innocent builder. In such cases, the court usually orders a forced sale of the land on which the building sits. See, e.g., Somerville v. Jacobs, 170 S.E.2d 805 (W.Va. 1969). However, older cases would order removal rather than a forced sale and the Rhode Island Supreme Court apparently prefers the older approach.  In Rose Nulman Park Found. ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014), …

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