Easements

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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Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

/ Adverse Possession, Easements, Servitudes, Title Issues

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the two doctrine. A significant minority of courts however now reverses the presumption when a prescriptive easement is claimed on the ground that neighbors often allow neighbors to make limited uses of their property and that such neighborly accommodations are generally informal grants of permission for such uses. It seems wrong to punish

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Express easement is permanent even if created out of necessity and the necessity ends

/ Easements, Servitudes, Statute of Frauds

The Montana Supreme Court has affirmed a traditional rule of property law that express easements are presumed to be permanent even if they are created for reasons that later cease to exist. In this case, the easement was originally necessary to link the property to a public road. When such easements are not created expressly, courts imply them over remaining land of the grantor to ensure that properties do not become landlocked. Such easements traditionally last as long as the necessity lasts. Express easements however are permanent even if created to link a landlocked parcel to a public road and the necessity ends because another means of access (over land of a stranger to the title) becomes available. Woods v. Shannon, 344 P.3d 413, 2015 MT 8 (Mont. 2015).

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Easement by necessity implied over government land

/ Easements, Real Estate Transactions

A Hawai`i court has recognized an easement by necessity over government land when the landlocked parcel was separated from land belonging to the state. Malulani Group, Ltd. v. Kaupo Ranch, Ltd. 329 P.3d 330 (Haw. 2014). The court held that the intent of the parties determines whether an easement exists over remaining land of the grantor to ensure access to a public road from an otherwise landlocked parcel. The court also held that no statute of limitations bars assertion of an easement by necessity.

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Servient owner entitled to change easement location

/ Easements, Real Estate Transactions, Servitudes

The Vermont Supreme Court has adopted the rule promoted by the Restatement (Third) of Property (Servitudes), §4.8(3), allowing the owner of a servient estate to relocate an easement if this does not reduce the utility of the easement to the owner of the dominant estate. Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014). The case concerned an underground easement for water lines. The court also held that the dominant estate owner was entitled to build a housing complex and that this development did not exceed the scope of a right-of-way easement even though it had been originally used only by a church.

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No prescriptive easement for underground sewer pipe because the use was not open and notorious

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has held that no prescriptive easement can arise no matter how long a sewer pipe has traversed a neighbor’s property because the non permissive use was not “open and notorious” and there were no other indications that the pipe was there. 143-145 Nahant Rd, LLC v. Mastoras, (Mass. Land Ct. 2014), 2014 WL 2548094, 42 Mass. Lawyers Weekly 1879 (July 7, 2014). With no easement, the use was likely a trespass although that was a question on remand.

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Easement can be narrowed by servient estate owner

/ Easements, Servitudes, Statute of Frauds, Title Issues

The Massachusetts Supreme Judicial Court ruled in Martin v. Simmons Props., Inc., 2014 WL 128537 (Mass. 2014), that the servient estate owner is entitled to narrow an easement as long as this does not interfere with the uses for which the easement was initially created. The court applied the traditional rule that easements are encumbrances on land and to be construed narrowly. At the same time, the touchstone was the intention of the parties that created the easement, determined both by the language in the easement and the circumstances at the time of creation of the easement. Because the documents and plan creating the easement did not specify an exact width of the easement or require that it be kept open through its full extent, the easement owner was entitled only to such use as was needed to afford access to the dominant estate. The court also reaffirmed the traditional rule that

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Court holds that beach rights can be lost through erosion

/ Easements, Title Issues, Trespass, Water Rights

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed the old rule that property rights can be expanded by slow accretion or diminished through slow erosion when property is located on a stream or the ocean. In White v. Hartigan, 982 N.E.2d 1115 (Mass. 2013), beachfront owners claimed a right to use the beach behind their neighbors house because their deed had given them rights to the beach in 1841. The court disagreed, noting that changing boundaries had placed the plaintiffs’ beach under water and that they had no right to “moveable” boundaries ensuring access to the beach behind their neighbor’s house.

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Implied beach easement found from recorded plans and sales statements

/ Easements, Real Estate Transactions, Servitudes

A Massachusetts court has held that owners of lots near the ocean had an implied easement of access to the beach because recorded plans drafted in 1892 showed an unenumerated lot with access to the ocean and the developer had advertised the lots as “Shore Lots” with a “Cool breeze all the time, good bathing, boating and fishing, nice beach, no undertow, shade trees on several of the lots.” Leahy v. Graveline, 82 Mass.App.Ct. 144, — N.E.2d —, 2012 WL 2819395 (Mass. Land Ct. 2012). The case represents an application of the recent decision in Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006) that similarly found implied rights to use open land depicted on a subdivision map.

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