For Neal Graham's Real Estate Class (LEGL 3485) at the University of Memphis. Copyright Cengage Learning.

1. Chapter 5
Easements and Licenses

2. Objectives
• After reading this chapter, you should be able
to
– Understand the uses of an easement.
– Identify the various kinds of easements and their
methods of creation and termination.
– Explain the purpose of a license and distinguish it
from an easement.

3. Easements
• Right to use real property of another owner
for specific purpose
– Types of easements
• Utility
• Access

4. Easements
• Categories
– Easement appurtenant
• Created for benefit of a particular tract of land
– Dominant and servient tenement
– Easement in gross
• Does not benefit land

5. Easements
• Creation of easements
– Express grant
– Implied
– Prescriptive
– Necessity

6. Easements
• Express grant
– Separate document
– Reservation of easement contained in a deed
– Grantor: owner of real property on which the
easement is located
– Grantee: owner of real property being benefited
by the easement

7. Easements
• Preparation of formal grant of easement
– Consideration
– Location
– Use
– Term
– Exclusive or nonexclusive
– Liability for easement area
– Repair and maintenance

8. Easements
• Implied easement
– When real property is conveyed, the conveyance
contains whatever is necessary for the beneficial
use and enjoyment of the real property.
– Unwritten
– Perpetual

9. Easement
• Implied easement
– Case
• Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529 (Va.
1991)
– At time of purchase, use of lake by seller was apparent,
continuous, and reasonably necessary to enjoyment of
property surrounding lake.

10. Easement
• Prescriptive easement
– Created when a person uses property without the
permission of the owner for a period of time.
– Use of easement must be adverse and hostile to
the owner of the real property over which the use
is being made.
– Unwritten
– Perpetual

11. Easement
• Easement by necessity
– Grants quasi-private right to condemn an
adjoining owner’s land for purposes of acquiring
an access easement to a public street or road
– Generally requires fair compensation

12. Easements
• Termination of easements
– Once granted, an easement continues to exist
until terminated by operation of some rule of law
or by terms of express grant.

13. Easements
• Termination of easements
– Termination by
• Expiration of express term
• Abandonment
• Merger
• Foreclosure of prior servient liens
• Express release or termination

14. Checklist for Creating Easements
• Parties
– Grantor
• Fee owner
– Grantee
• Appurtenant easement
• Easement in gross

15. Checklist for Creating Easements
• Description of easement area
– Blanket description
– Specific location
– Description of property to be benefited by
easement

16. Checklist for Creating Easements
• Purpose of easement
– General types of use
• Utility location
• Access to and from public streets
• Parking
• Encroachment permission
– Description of use

17. Checklist for Creating Easements
• Purchase price or consideration
– Mutual benefit
– Nominal consideration
– Negotiated purchase price

18. Checklist for Creating Easements
• Term
– Perpetual
– Fixed term
– Conditioned upon event

19. Checklist for Creating Easements
• Exclusive or nonexclusive use
• Maintenance obligations
– Joint maintenance
– Grantee of easement maintains
– Grantor of easement maintains

20. Checklist for Creating Easements
• Liability
– Cross-indemnities
– Grantee indemnifies grantor
– Liability insurance

21. Checklist for Creating Easements
• Consent of prior mortgagees
– Consent to the grant of easement by all prior
mortgage holders or lien holders to prevent
termination of easement in the event of
foreclosure
– Title examination of easement property to
determine existence of prior mortgages or liens

22. Checklist for Creating Easements
• Signatures
– Signature of grantor
– Signature of grantee if easement provides for
grantee indemnities or other obligations
– All signatures witnessed and notarized in a form
to permit easement to be recorded

23. Checklist for Creating Easements
• Recordation of easement
– Easement recorded to protect grantee against
future purchasers, mortgagees, or lienholders of
the subject property

24. Licenses
• License
– Revocable privilege or permission to do an act or a
series of acts on land possessed by another
– Distinguished from easement because license is
merely permission to perform a certain act
• Easement is property ownership interest
– Can be created orally or in writing, or implied by
conduct

25. Practical Tips for the Paralegal
• Preparation of an easement requires the same
research and drafting skills as any other legal
document.
– Language used to create use, location, and
limitations of easement should be concise and
with clear meaning.

26. Practical Tips for the Paralegal
• Preparation
– Determine exact location of easement.
– Determine rights and duties of each party.
– Determine duration and liability.

27. Ethics: False Witness
• Unethical for an attorney or a paralegal to
give false witness or commit perjury on behalf
of a client
• Notarizing signature requires personal witness
of signatory
– Or paralegal may be committing perjury

28. Summary
• Easements may be created for private use or
public benefit (utilities)
• Easements may be created by
– Express creation
– Implication
– Prescription
– Necessity

29. Summary
• Duration of easement
– Express period of time or perpetual
• Termination
– Expiration of express term
– Abandonment
– Merger
– Foreclosure of prior lien
– Express release or termination

30. Summary
• License
– Grants the holder permission to do something
upon the grantee’s land
– Different from an easement because a license is
not a property interest