Servitudes

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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Marketable title act extinguishes easement by necessity

/ Easements, Servitudes, Title Issues

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will ordinarily not be the case because easements by necessity are required to obtain access to the land and most owners will visibly use those easements to obtain access. In this case, however, because the landlocked ninety-acre parcel had remained undeveloped for the period defined by the Marketable Title Act. The court’s ruling was based on its interpretation of the statute and because it was bound by that statutory language. In addition, the statute provided the landlocked owner a method to preserve an easement by …

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Owners cannot create easements in their own parcels

/ Easements, Servitudes

In Fitzpatrick v. Kent, 458 P.3d 943 (Idaho 2020), an owner of of two adjacent lots recorded a grant of an appurtenant easement over the servient estate for maintenance of a pond and irrigation system to benefit the dominant lot. The Idaho Supreme Court held that this purported grant of an easement was invalid since one cannot create an easement in one’s own property. So when the owner sold the servient estate, it was not subject to the easement because the deed given to the servient estate owner did not itself reserve the easement. It also did not matter that the servient estate owner was aware of the easement and impliedly agreed to it. The opinion places formality over substance, but is based on an old property law rule whose purpose is to ensure that easements (and covenants) are created at the same moment that the owner parts company with the land …

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California limits enforceability of private transfer fees

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation, Servitudes

California passed a statute prohibited private transfer fees unless used exclusively to support the encumbered property or cultural, education, charitable, recreational, environmental, conservation, or similar activities. Cal. Civ. Code §1098.6 (2018 Cal. Stat. ch. 306). Note that the Federal Housing Finance Agency and the Federal Housing Administration are prohibited from dealing in mortgages on properties encumbered by private transfer fee covenants that do not provide a “direct benefit” to the real property encumbered by the covenant.12 C.F.R. §1228.1.

Easement by necessity extinguished by marketable title act

/ Easements, Servitudes, Title Issues

Vermont’s marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a “recorded agreement.” In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the Vermont Supreme Court held that easements by necessity fit into neither of those categories and thus need to be re-recorded every forty years to preserve them. While the case resulted in a landlocked parcel, the Court found the statutory policies of clearing title to be more important than ensuring access to a landlocked parcel.

Short term rental use held not to violate covenant prohibiting “commercial activity”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

The courts continue to split on this question with the majority holding use of property for short-term rental (such as vacation rental or Airbnb use) is a residential rather than a commercial use. The Wisconsin Supreme Court has joined the courts that have found short-term home rentals to be consistent with a covenant prohibiting “commercial activity.” Forshee v. Neuschwander, 914 N.W.2d 643 (Wis. 2018). The court noted that “[p]ublic policy of the State of Wisconsin favors the free and unrestricted use of property…Accordingly, restrictions contained in deeds and in zoning ordinances must be strictly construed to favor unencumbered and free use of property. Consequently, in order to be enforceable, deed restrictions that limit the free use of property must be expressed in clear, unambiguous, and peremptory terms.”

Restrictive covenant held not to be “property” compensable under the takings clause

/ Servitudes, Takings

A town bought a parcel of land subject to a restrictive covenant in order to build a municipal water storage tank contrary to a restrictive covenant prohibiting such construction. The town sued for a declaratory judgment that it could violate the covenant without paying just compensation under the fourteenth amendment’s takings clause. Relying on an earlier case decided by the Colorado Supreme Court, Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Colorado Court of Appeals held that covenants are not compensable property rights under the fourteenth amendment. Town of Monument v. State,2018 WL 4781388, 2018 Colo. App. LEXIS 1396 (Colo. Ct. App. 2018). The court argued (1) that having to compensate every owner who land value may be affected by the government’s violating a covenant would make use of the eminent domain power too difficult; (2) owners should not be able to contract to make taking property by …

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