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Flashcards in Unit 4 - part 4 Deck (12):

How is easement created?

By a written agreement between two separate parties that establishes the easement right: party that owns the land and party that benefits from the easement.

Two other ways for an easement to be created are by means of

- an easement by necessity
- easement by prescription


What is an easement by necessity?

An easement that is created when an owner sells a parcel of land that has no legal access to a street or public way except over the seller's remaining land is an easement by necessity.

An easement by necessity is credited by court order based on the principle that owners must have the right to enter (ingress) and exit (egress) their land.


What is an easement by prescription?

If the claimant has made use of another's land for a certain period of time as defined by state law (usually 10-21 years), an easement by prescription or prescriptive easement may be acquired.

The claimant's use must have been continuous, nonexclusive (the owner isn't excluded from using that part of property) and without owner's permission.


What is tacking?

The concept of tacking provides that successive periods of continuous occupation by different parties may be combined (tacked) to reach the required total number of years necessary for easement by prescription.

The parties must have been successors in interest (such as deceased's heir), a landlord and a tenant, or a seller and a buyer.


When terminating an easement can occur?

1. when the need no longer exists

2. when the owner or rather dominant or the servient tenement become sole owner of both properties

3. by the release of the right of easement to the owner of the servant tenement

4. by the abandonment of the easement

5. by the nonuse of a prescriptive easement.


What is an license?

A license is a personal privilege to enter the land of another for a specific purpose. A license differs from the easement in that it can be terminated or canceled by the owner of the property. A license ends with the death of either party or with sale of the land.


What is encroachment?

When a building, fence, or driveway illegally extends beyond the boundaries of the land of its owner or legal building lines, an encroachment occurs.

If a building encroaches on adjoining land, the neighbors may be able to weather recover damages or secure removal of the portion of the building that encroaches.

An encroachment that exceeds the state's prescriptive period, may give rise to an easement by prescription.


What is lis pendens?

A notice filed in the public record of a pending legal action affecting the title to or possession of property.

While lis pendens does not have a physical effect on property, it creates a "cloud on the title" to the property, which may prevent the property from being sold.


What are governmental powers?

Individual ownership rights are subject to certain powers, or rights, held by federal, state, and local governments. These limitations on the ownership of RE are imposed for the general welfare of the community and supersede the rights or interests of the individual.


What governmental powers includes?

1. police power
2. eminent domain
3. taxation
4. escheat

or PETE (shortcut)


police power

Police power is the right and authority of government to regulate and enforce individual’s conduct or property to protect and maintain the safety, health, and welfare of the community.

Under police power, the use of real property may be regulated. Common examples of police power are Zoning, Building codes and rent control.


eminent domain

Eminent domain is the power of the state to take private property for the use in a public project in return for reasonable compensation. Reasonable compensation is defined in terms of fair market value of the property.

The property is taken either for government use or by third parties who will devote it to public or civic use or, in some cases, economic development.

The most common uses of property taken by eminent domain are for railroads, public utilities and highways.