License vs. Easement
License vs. Easement - It is very important to understand the difference of a license and an easement. This will be important for the State Exam as well as your career when working with buyers and sellers.
Easement - An easement is a permanent right of use of another's real property. If a seller has an easement right to cross the neighbor's property, this is an appurtenance to the seller's property. This right can be passed on to a buyer. The neighbor who allows the seller to cross their real property is encumbered with this easement. The neighbor has an encumbrance to their property and the easement has lowered the value of their property.
License - A license is a temporary right of use of another's real property. If the seller has permission to use a right of way across the neighbor's property, it is of little value to the seller and their property. The neighbor can revoke the permission/license at any time. The license is not an appurtenance to the seller's property.
Working With Sellers - When a seller says that they have an easement across the neighbor's property, a licensee should ask if it is in writing and recorded with the county. Sometimes a seller will say that they have an easement and all they have is a license/permission. This should clearly be clarified to any buyer. You do not want a buyer to think that the real property has an easement when only a license is present. This could present possible litigation.
Not Transferable - If the use of the neighbor's land was a license, the buyer would have to gain their own license/permission with the neighbor. The license is not transferable from the seller to the buyer.
Servient & Dominant Estate
Easement - An easement is irrevocable. An easement is permanent. The servient property owner cannot withdraw the easement.
Servient Estate - When an easement right exists across a real property owner's property, the total use of the property is encumbered. The property owner must allow the easement holder the right to use that easement across their land. The easement is an encumbrance to the owner's property. The easement usually lowers the value of the owner.
Dominant Estate - When an easement right exists to cross another's property, there is a right of use of another's property attached to the user's property. The property owner has the right of easement across another's property on a permanent basis. The easement right is legally attached to the property and is an appurtenance to the property. This easement right increases the value of the property.
Voluntary vs. Involuntary Easement
Easement Appurtenant/Easement In Gross - Whether a voluntary or involuntary easement, the easement will have an additional classification:
Easement In Gross - Holder does not need to own the easement right or the land that it crosses. If the right is granted to a person (and not the land), the easement in gross dies with the person. The easement will not pass with the land when sold. Easement in Gross is usually granted to companies that do not die. Hence, the utilities gaining an easement in gross.
Still An Encumbrance - Whether an easement appurtenant or an easement in gross, the land that the easement crosses is servient and the easement is an encumbrance to the land.
Recording - When a person " records" an agreement with the County, it is known as " constructive notice." Any person or business can contact the county where the property is located and gain information on the subject property. Recorded documents are available to anyone who requests to see or obtain copies of all subject agreements.
First In Time - Documents that are recorded will have first priority over documents that are not recorded. Easements that are recorded will have greater priority than those easements not recorded.
Not Recorded - An easement that is not recorded is still valid.
Subsequent Buyers/Owners - Future buyers/owners of the dominant estate will always gain the dominant estate status if the easement is recorded with the county. Future buyers/owners will gain the dominant estate if viewed prior and known to the purchase of the dominant estate as an easement and not a license.
Problem 1. - If the seller does not notify the buyer of the easement status (or if it is just a license), the buyer can sue the seller for concealment, anguish, inconvenience, etc. etc.
Problem 2. - Some lawyers will also go after the involved real estate licensees to the transaction.
Status is Important - It is important to establish the status of easements during a sales transaction. Correct information should be provided both principals to the transaction; buyer and seller.
Forms of Easements
Forms of Easements - Unfortunately, for students, there are many different forms of easements. The main areas of questions on the State Exam involve what we have already covered. This would be:
Mr. Parker owned a lot that held an appurtenant easement over the neighboring property of Mr. Martin. It gave him the right to run a sewer line across Martin's property. If Mr. Parker sells the lot to Mr. Smith, but does not mention the easement in his deed, the easement:
A) Remains with Mr. Parker
B) Appurtenance transfers to Smith
C) Reverts to Martin
D) Is lost by escheat
Parker's easement of passage across Martin's property would be:
A) A license
B) A lien
C) An appurtenance to Martin's property
D) An encumbrance to Martin's property
Which of the following encumbrances currently affects the physical use of the property?
A) An easement
B) A mortgage
C) A money judgment
D) Delinquent taxes
An easement is:
A) A general lien
B) A specific lien
C) An encumbrance
D) An equitable restriction
An easement appurtenant:
A) May be terminated by the dominant estate
B) Will be terminated by the sale of the dominant estate
C) Will be terminated by the sale of the servient estate
D) Can not be terminated
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