- For railroad track easement see Track transition curve.
An easement is the right or freedom to do something or the right to prevent someone else from doing something over the real property of another. At common law, an easement came to be treated as a property right in itself and is still treated as a kind of property by most jurisdictions. In some jurisdictions, another term for easement is equitable servitude, although easements do not have their origin in equity. Image File history File links This is a lossless scalable vector image. ...
This article or section does not cite any references or sources. ...
This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
A gift, in the law of property, has a very specific meaning. ...
In common law, adverse possession is the process by which title to anothers real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owners rights for a specified period of time. ...
An English deed written on fine parchment or vellum with seal tag dated 1638. ...
{{PropertyLaw}} In the [[common law]] of [[property]], personal belongings that have left the possession of their rightful owners without having directly entered the possession of another person are deemed to be lost, mislaid, or abandoned, depending on the circumstances under which they were found by the next party to come...
A treasure-trove is gold, silver, gems, money, jewellery, etc found hidden under ground or in cellar or attics, etc. ...
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. ...
Bailment describes a legal relationship where physical possession of personal property (chattels) is transferred from one person (the bailor) to another person (the bailee) who subsequently holds possession of the property. ...
To licence or grant licence is to give permission. ...
At common law, an estate is the totality of the legal rights, interests, entitlements and obligations attaching to property. ...
Allodial title is a concept in some systems of property law. ...
Fee simple, also known as fee simple absolute or allodial, is a term of art in common law. ...
This article includes a list of works cited or a list of external links, but its sources remain unclear because it lacks in-text citations. ...
A life estate, is a term used in common law to describe the ownership of land for the duration of a persons life. ...
A defeasible estate is created when a grantor transfers land conditionally. ...
In property law and real estate, a future interest - is an interest that accompanies a defeasible estate. ...
A concurrent estate or co-tenancy is a concept in property law, particularly derived from the common law of real property, which describes the various ways in which property can be owned by more than one person at a given time. ...
A leasehold estate is an ownership interest in land in which a lessee or a tenant holds real property by some form of title from a lessor or landlord. ...
This article is about the form of housing. ...
Conveyancing is the act of transferring the legal title in a property from one person to another. ...
A bona fide purchaser (BFP)—or bona fide purchaser for value without notice (BFPFVWN)—in the law of real property, is an innocent party who purchases property for value, without notice of any other partys claim to the title of that property. ...
Torrens title is a system of land title where a register of land holdings maintained by the state guarantees indefeasible title to those included in the register. ...
Strata Title is a form of ownership devised for multi-level apartment blocks, which have apartments at different levels or strata. Strata title was first introduced in New South Wales, Australia to better cope with apartment blocks. ...
Estoppel by deed is a doctrine in the law of real property that arises where a party conveys title to land that he does not own to a bona fide purchaser, and then acquires title to that land. ...
A quitclaim deed is a term used in property law to describe a document by which a person (the grantor) disclaims any interest the grantor might have in a piece of real property, and passes that claim to another person (the grantee). ...
This article is about the legal mechanism used to secure property in favor of a creditor. ...
Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. ...
This page is a candidate to be copied to Wiktionary. ...
In property law and real estate, a future interest - is an interest that accompanies a defeasible estate. ...
A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property. ...
The rule against perpetuities is a rule in property law which prohibits a contingent grant or will from vesting outside a certain period of time. ...
To meet Wikipedias quality standards, this article or section may require cleanup. ...
In the common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. ...
A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another. ...
A profit, in the law of real estate, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. ...
A covenant running with the land, is a real covenant, in the law of real property. ...
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land, requiring the landowner to maintain certain practices with respect to the land (e. ...
In the law of real property, fixtures are anything that would otherwise be a chattel that have, by reason of incorporation or affixation, become permanently attached to the real property. ...
Waste is a term used in the law of real property to describe a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property. ...
A partition is a term used in the law of real property to describe the court-ordered division of a concurrent estate into separate portions representing the proportionate interests of the tenants. ...
Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. ...
Lateral and subjacent support, in the law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures. ...
An assignment is a term used with similar meanings in the law of contracts and in the law of real estate. ...
Nemo dat quod non habet, literally meaning no one [can] give what they dont have is a legal rule, sometimes called the nemo dat rule that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. ...
A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ...
In the common law, a tort is a civil wrong for which the law provides a remedy. ...
In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ...
The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ...
The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. ...
The law of evidence governs the use of testimony (e. ...
This article describes a highly specialized aspect of its subject. ...
This article does not cite any references or sources. ...
This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land, requiring the landowner to maintain certain practices with respect to the land (e. ...
The Court of Chancery, London, early 19th century This article is about the concept of equity in the jurisprudence of common law countries. ...
The right is often described as the right to use the land of another for a special purpose. Unlike a lease, an easement does not give the holder a right of "possession" of the property, only a right of use. It is distinguished from a licence that only gives one a personal privilege to do something even more limited on the land of another. An example of a license is the right to park a car in a parking lot with the consent of the parking lot owner. Licences in general can be terminated by the property owner much more easily than easements. This is similar to but not the same as a wayleave. Easements also differ from licences in that most easements ("easements appurtenant") are attached to and benefit another parcel of land, not a specific person. This means that a property that enjoys an easement over another will continue to enjoy the easement even if the property gets transferred to a different owner. Other easements ("easements in gross") benefit a specific person. This article is about a property agreement in private law. ...
A license or licence is a document or agreement giving permission to do something. ...
Easement concepts differ substantially from country to country, and in the U.S. from state to state. Historically, it was limited to the right-of-way and rights over flowing waters, although this is no longer true. Traditionally, it was a right that could only attach to an adjacent land and was for the benefit of all[citation needed], not a specific person; this is also no longer true in many jurisdictions.
Classification of easements
Public easements versus private easements Easements may be considered public or private. A private easement is limited to specific individuals or entities such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river.
Appurtenant easements compared to easements in gross In the U.S., an easement appurtenant is one that benefits the dominant tenement (i.e. attached to adjoining land), as compared to an easement in gross that is personal to holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.
An easement in gross is one that is attached to an individual person or legal entity rather than a parcel of real estate served by the easement. This easement can be personal (like an easement to use one's boat ramp) or commercial (like an easement given to a railway company to build and maintain a rail line across one's property) in nature. In earlier times, easements in gross were considered neither assignable nor inheritable, but today, most courts hold that commercially oriented easements in fee are freely alienable. This is not true in England and Wales where easements cannot be in gross. See also Profit-a-Prendre. This article needs cleanup. ...
Floating easements A floating easement is when there does not exist any fixed location, route, method or limit to the right of way. [1] [2] [3] For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross. [4] Fixed may refer to: a fixed currency a fixed exchange rate Fixed, an album by Nine Inch Nails This is a disambiguation page — a navigational aid which lists other pages that might otherwise share the same title. ...
This article describes routing in computer networks, a method of finding paths from origins to destinations, along which information can be passed. ...
Look up Right of way in Wiktionary, the free dictionary. ...
This article does not cite any references or sources. ...
One case defined it as: "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement...."[5] Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."[6]
Dominant tenement versus servient tenement -
Main article: Dominant estate Where an easement is appurtenant (in England and Wales, all easements), it will typically require the existence of two parcels of land, known as tenements. There is the dominant tenement, which is the plot of land to which the benefit an appurtenant easement is attached. Second, there is the servient tenement, which is the plot of land which bears the burden of the easement. A dominant estate is the parcel of real property that has an easement over another piece of property. ...
For example, where a driveway is owned by house A, but the owners of house B are permitted to drive over it to gain access to their house, there is an easement of way, with house B the dominant tenement and house A the servient tenement.
Profits -
Main article: Profit-à-prendre A profit (or profit à prendre) is a right to take something off another person's land[7]. At common law it was treated differently from an easement, something that is still the case in English law. In other jurisdictions[citation needed] a profit is treated as a special type of easement. It has been suggested that Profit (real estate) be merged into this article or section. ...
English law is a formal term of art that describes the law for the time being in force in England and Wales. ...
Examples of profits include the right to come onto the property of another and remove fruits, vegetables, and "fugacious minerals" (minerals that tend to be movable) such as gas or oil; by comparison, coal, which does not move, would not be considered a fugacious mineral. The rights of the profit-holder depend on the nature of the profit.
Creation of easements Easements may be created in a number of ways. In most of the United States, using someone else's property, for example, for ingress and egress over a certain number of years, regularly and without the consent of the property owner, can give the user the right to continue using the property for the same purpose for as long as the user wishes. This method of acquiring an easement is called a "prescriptive easement" or "easement by prescription."
In most of the United States, "prescriptive easement" cannot be used to acquire the right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property. This concept, known as "ancient lights" in some common law jurisdictions, has recently been recognized in California. Ancient lights is a term of property law in England. ...
Prescriptive easements can be contrasted with adverse possession, which involves the taking of complete title to land rather than just taking the right to use the property. In common law, adverse possession is the process by which title to anothers real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owners rights for a specified period of time. ...
In England and Wales, much the same result is achieved but in a different way: if you are able to show that the easement has been used, as of right, for a period of 20 years, the law assumes that the right to use the easement must have been granted - either long in the past (since time immemorial) or more recently where the evidence has been lost (lost modern grant). This can be disproved, for example by showing that the owner of the land was incapable of consenting. This distinguishes this from adverse possession (by which the ownership of the land itself can be acquired by long user) which does not rely on the fiction of a supposed grant but instead on the fact of the use/possession of the land.
Implied easements versus express easements An easement may be implied or express. An express easement may be "granted" or "reserved" and is typically included in a document such as a deed or other officially recorded document, or incorporated by reference to a subdivision plan by "dedication", or in restrictive covenants in an owners' association agreement. For example, a "paper street" shown on an approved and recorded subdivision plan, but never improved to become an actual street, creates an express "easement by estoppel" whereby the grantor and abutters of the way cannot later deny the existence of the way or its potential benefits to others in the subdivision (e.g., for an underground drainage line). Moreover, courts typically refer to the intent of the parties in prescribing an easement based on prior use. An English deed written on fine parchment or vellum with seal tag dated 1638. ...
Easement by necessity Similarly, parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. There is an implied easement arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water). This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states, also, frown on granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.
Easement by prescription Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period. Requirements vary among states to successfully claim adverse possession. In California, for example, an adverse possessor is required to assert possession of the property AND pay all property taxes for at least five years. Prescriptive easements are a type of implied easement, in that they arise even though they are not expressly created or recorded. Unlike other implied easements, however, prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession. Fee simple, also known as fee simple absolute or allodial, is a term of art in common law. ...
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others). Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity.
The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero. A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated. ...
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.
Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.
Right-of-way for access is among the most common easement by prescription.
Easements taken by the government In the United States, easements may be acquired by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the U.S., in accordance with the Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement. Eminent domain (United States), compulsory purchase (United Kingdom, New Zealand, Republic of Ireland), resumption/compulsory acquisition (Australia) or expropriation (Canada, South Africa) in common law legal systems is the inherent power of the state to seize a citizens private property, expropriate property, or rights in property, without the owner...
In property law, condemnation is identical to eminent domain. ...
Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ...
A similar right to property would appear to exist in the law of England and Wales following the 1998 incorporation of the European Convention on Human Rights and Fundamental Freedoms 1950 into English law, in that any deprivation of the rights of the owner of property must be "in accordance with law" as well as "necessary in a democratic society" and "proportionate". This means that any act of a public authority to compulsorily purchase or otherwise take property would be incompatible with the Convention, and thereby unlawful.
Termination of easements Generally, mere non-use does not end an easement.[8] One or more of the following factors may also have to be present: - Agreement to terminate by grantor and the grantee of the easement
- Expiration of the time allowed for the easement
- Abandonment or expressed intent to discontinue use of the easement
- Merger where one person buys both dominant and servient tenement
- End of necessity which gave rise to easement by necessity
- Estoppel, where a holder of the easement stops making use of the easement and a third party detrimentally relied on the stopped use
- Prescription where a holder of the easement uses someone else to use the easement for a period of statute of limitations
- Condemnation where the government terminates easement through eminent domain
It has been suggested that this article or section be merged with Estoppel (English law). ...
Examples of easements Easements include: - Right to light. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light.
- Aviation easement. The right to use the airspace above a specified altitude for aviation purposes. Also known as avigation easement, where needed for low-altitude spraying of adjacent agricultural property.
- Railroad easement.
- Utility easements including:
- Sidewalk easements. Usually sidewalks are in the public right-of-way, but sometimes they are on the lot.
- Solar easements. Prevents someone from blocking the sunlight.
- View easements. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.
- Driveway easements, also known as easement of access. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easements may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easements should be recorded in each property deed.
- Beach access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.
- Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. Could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.
- Recreational easements. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easements also include such easements as equestrian, fishing, hunting, hiking, biking (e.g., Indiana's Calumet Trail) and other such uses.
- Conservation easements. Grants rights to a land trust to limit development in order to protect the environment.
- Historic Preservation Easement. Similar to the conservation easement, typically grants rights to a historic preservation organization to enforce restrictions on alteration of a historic building's exterior.
- Easement of lateral and subjacent support. Prohibits an adjoining land owner from digging too deep on his lot or in any manner depriving his neighbor of vertical or horizontal support on the latter's structures e.g. buildings, fences, etc.
- Communications Easement.This easement can be used for wireless communications towers, cable lines, and other communications services. This is a private easement and the rights granted by the property owner are for the specific use of wirecommunications.
In English Law a right to light is a form of easement. ...
A right-of-way (plural: rights-of-way) is an easement or strip of land granted to a railroad company upon which to build a railroad. ...
Storm drain in use A storm drain, storm sewer, stormwater drain (Australia and New Zealand) or surface water system (UK) is designed to drain excess rain and ground water from paved streets, parking lots, sidewalks, and roofs. ...
For the art of stitching, see Sewing. ...
For delivered electrical power, see Electrical power industry. ...
A telephone line (or just line) is a single-user circuit on a telephone communications system. ...
Fuel gas can refer to any of several gases burned to produce thermal energy. ...
Sol redirects here. ...
This article should be split into multiple articles accessible from a disambiguation page. ...
An English deed written on fine parchment or vellum with seal tag dated 1638. ...
For other uses, see Beach (disambiguation). ...
In the United States, a conservation easement is an easement — a transfer of usage rights — which creates a legally enforceable land preservation agreement between a landowner and a municipality or a qualified land protection organization (often called a land trust), for the purposes of conservation. ...
A land trust is an agreement whereby one party (the trustee) agrees to hold ownership of a piece of real property for the benefit of another party (the beneficiary). ...
Demolition of the former Penn Station concourse raised public awareness about preservation Historic preservation is the act of maintaining and repairing existing historic materials and the retention of a propertys form as it has evolved over time. ...
Trespass upon easement Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downhill neighbor may similarly trespass on the neighbor's water easement. “Unlawful entry†redirects here. ...
Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see above), if no action is taken to cure the limitation over an extended period.
Adverse possession Adverse possession can result in a grant of rights in adversely possessed property which are 'taken' by the adverse possesser. For example, it is possible to adversely possess an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive, and must outlast the same required statutory eviction period. In common law, adverse possession is the process by which title to anothers real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owners rights for a specified period of time. ...
For railroad track easement see Track transition curve. ...
For example, given a deeded easement to use someone else's driveway to reach a garage, if a fence or permanently locked gate is established by the user of the easement that prevents access to the easement area by the property owner (and in some states if the user of the easement pays the property taxes on the area covered by the easement), and nothing is done to remove or circumvent the obstacle, and the statutory period expires; then the property included in the easement can be forfeit by the owner and accrue to the benefit of the adverse possessor.
Restrictive easement Restrictive easements are also called "negative easements," as their "use" is normally prohibitive, such as a common "vehicular non-access" (sometimes mislabeled "non-vehicular access") easement as shown along a main thoroughfare where the governmental entity needs to restrict access. Therefore a restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands (i.e., a conservation easement) to prevent them from being destroyed by development. Image File history File links Wikitext. ...
A subtropical wetland in Florida, USA, with an endangered American Crocodile. ...
In the United States, a conservation easement is an easement — a transfer of usage rights — which creates a legally enforceable land preservation agreement between a landowner and a municipality or a qualified land protection organization (often called a land trust), for the purposes of conservation. ...
Prescriptive easements for view, or the right to prevent a neighboring property owner from blocking the view across the property from a neighboring property, are not recognized in any U.S. state. This type of easement is referred to as "ancient lights" in some non-U.S. jurisdictions. An easement for view can be obtained by grant or reservation in most U.S. jurisdictions when property is conveyed.
Another type of restrictive easement is an historic preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade.
The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever.
The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.”
Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance.
Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review.
Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use.
Easements are granted in perpetuity while historic district ordinances and local zoning practices change over time to reflect the dynamics of a changing political and/or economic interests of a community. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure.
An easement donation reduces the basis in subsequent years by a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place. This Basis Adjustment will cause a reduction from the owner’s depreciation schedule and or increase one’s capital gain upon sale of subject property.
Easements provide for judicial extinguishment in the event the historic structure is destroyed. The proceeds from the extinguishment are prorated at a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place, and paid to the easement holding organization (not the landlord).
In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric. Such an easement typically contains provisions:
1) Prohibiting demolition.
2) Prohibiting or severely limiting subdivision.
3) Prohibiting or limiting further construction or development. Depending upon the property, the easement may also prohibit or limit use changes.
4) Prohibiting changes to exteriors (and on occasion interiors) of historically or architecturally significant buildings depending upon their significance, barring changes to facades visible from public ways or prohibiting changes without prior review by the holding organization.
5) Typically, easements on significant historic buildings will regulate changes to all facades, regulate how historic materials are replaced or repaired, prohibit or regulate placement of commercial or other signs and prohibit changes inconsistent with the building's historic character.
6) Requiring maintenance in conformity with agreed standards, typically those set by the US Department of Interior, to protect the historic structure.
7) Maintenance in excess of that ordinarily anticipated for comparable structures is typically required.
8) The cost of conducting "interruptive maintenance" out of the ordinary building maintenance cycle to correct what, in economic terms, are relatively minor defects (such as repainting or repair of deteriorated brickwork, cornices or window elements more frequently than would be required by market conditions) must be considered.
9) Requiring the owner to keep the property fully insured against casualty loss and to reconstruct improvements if they are destroyed. Again, not all preservation easements require the owner to insure the property or to replace it in the event of casualty.
10) Prohibiting dumping of trash.
11) Allowing for certain rights held by the holding organization, including periodic inspection, review and enforcement rights.
12) On structures within historic districts provide that any replacement structure must be constructed according to design plans approved by the easement holder.
Torrens title registration Under the Torrens title registration system of land ownership registration, easements and mortgages are recorded on the titles kept in the central land registration or cadastre. Any unrecorded easement is extinguished and no easement by prescription or implication may be claimed. Torrens title is a system of land title where a register of land holdings maintained by the state guarantees indefeasible title to those included in the register. ...
Introduction A mortgage is a device used to create a lien on real estate by contract. ...
In law, land registration is a system by which the ownership of estates in land, is recorded and registered, usually by government, in order to provide evidence of title and to facilitate dealing. ...
Cadastre (a French word from the Late Latin capitastrum, a register of the poll-tax) is a register of the real property of a country, with details of the area, the owners and the value. ...
England and Wales In England and Wales there are four requirements for an easement[9]: - there must be a dominant and servient tenement
- the easement must confer a benefit (or "accommodate") the dominant tenement
- the dominant and servient tenements must not be owned and occupied by the same person
- the easement must be capable of forming the subject matter of a grant
Thus an easement is always linked to a specific property and can never be in gross, nor can an easement be for the benefit of the general public. Separate laws, such as the law of public rights of way, or customary rights, governs rights for the public in general.
Prescription An easement may be prescribed where the easement has been used as if the owner of the dominant tenement were entitled to it (known technically as "user as of right"). There are now four ways that an easement may be prescribed: - immemorial user
- long user
- lost modern grant
- under the Prescription Act
There are three conditions for a user as of right to exist, which follows the Roman Law doctrine of nec vi, nec clam, nec precario (without force, without secrecy, without permission). Using the term Roman law in a broader sense, one may say that Roman law is not only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. ...
The question of how far the owner of the servient tenement may prevent prescription by giving a blanket permission to use the easement is uncertain. It was suggested by Warner J Rafique v The Trustees of The Walton Estate (1993) 65 P. & C.R. 356, that the owners of an easement of way could prevent the possibility of the acquisition of prescriptive rights by displaying a notice on the road in question stating that anybody using the road did so "only be permission of the Trustees and that that permission might be withdrawn at anytime."
See also In English Law a right to light is a form of easement. ...
Air rights are a type of development right in real estate. ...
The Countryside and Rights of Way Act 2000 is a UK act of parliament which came into force on November 30, 2000. ...
Crown land is a designated area belonging to the Crown, the equivalent of an entailed estate that passed with the monarchy and could not be alienated from it. ...
For fair use in trademark law, see Fair use (US trademark law). ...
Not to be confused with copywriting. ...
Because land is a limited resource and property rights include the right to exclude others, land rights are a form of monopoly. ...
Prior appropriation water rights, sometimes known as the Colorado Doctrine, is a system of allocating water from a water source that is markedly different from Riparian water rights. ...
The right of public access to the wilderness, or everymans right, is a convention of property rights in the Nordic countries of Sweden, Finland and Norway, in addition to parts of Scotland (Shetland/Orkney), which allows the common public the right of access to the land, be it public...
Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. ...
Title is a legal term for an owners interest in a piece of property. ...
A structural encroachment is a concept in American real property law, in which a piece of real property hangs from one property over the property line of another landowners premises. ...
External links Look up Easement in Wiktionary, the free dictionary. Wiktionary (a portmanteau of wiki and dictionary) is a multilingual, Web-based project to create a free content dictionary, available in over 151 languages. ...
References - ^ Ballentine's Law Dictionary, p. 201.
- ^ law.com dictionary: [1]
- ^ Legal-explanations.com: [2]
- ^ Example of a public floating easement, owned by the state of Florida and managed by the city of St. Augustine: [3]
- ^ Sunnyside Valley Irrigation District v. Dickie, Docket No. 726353MAJ (Wash. 2003), citing, Berg v. Ting, 125 Wn.2d 544, 552, 886 P.2d 564 (1995), retrieved from findlaw.com [4]
- ^ Ibid., citing Rhoades v. Barnes, 54 Wash. 145, 149, 102 P. 884 (1909).
- ^ Duke of Sutherland v Heathcote [1892] 1 Ch 475 at 484 per Lindley LJ
- ^ Ward v. Ward (1952) 7 Exch. 838
- ^ Re Ellenborough Park [1956] Ch 131
This article is about the U.S. State of Florida. ...
Nickname: Location in St. ...
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