Professional Surveyors and Real Property Descriptions E-Book

Stephen V. Estopinal

• Herausgeber: John Wiley & Sons
• Kategorie: Wissenschaft und neue Technologien
• Sprache: Englisch

Seitenzahl: 490

Veröffentlichungsjahr: 2011

Beschreibung

The only modern guide to interpreting and writing real property descriptions for surveyors Technical land information is no longer the exclusive domain of professional surveyors. The Internet now houses a multitude of resources that nontechnical professionals--such as attorneys and realtors--access and implement on a daily basis. However, these professionals are trained in aspects of law and commerce that do not provide the proper education and experience to interpret and evaluate their land boundary information discoveries correctly. As a result, their analysis is often erroneous and the data misapplied--ultimately leading to confusion and costly litigation. Professional Surveyors and Real Property Descriptions attempts to bridge the ever-widening gap between the users of land boundary information and the land surveyors who produce it. An expert team of authors integrates the historic and legal background of real property interests with fundamental concepts of the surveying profession in a manner accessible for average readers. These provide the basics for both properly comprehending older descriptions and competently constructing complete and modern real property descriptions that foster better communication. Highlights in this book include: * An in-depth exploration of historic descriptions and how to read them * Coverage of the widely accepted ALTA/ACSM Land Boundary Survey standards and associated property descriptions * A diverse collection of examples and practice scenarios * An overview of the latest issues related to the use of GPS and GIS Written in easy-to-understand language, this practical resource assists nontechnical professionals in understanding exactly what a surveyor does and does not do, and serves as a valuable tool for obtaining the most satisfactory, accurate, and complete real property descriptions.

Leseprobe

Contents

Cover

Title Page

Copyright

Foreword

Chapter 1: Introduction

1.1 PROPERTY

1.2 TITLE AND INTERESTS IN REAL PROPERTY

1.3 TRANSFERS OF TITLE AND INTERESTS

1.4 DEEDS

Chapter 2: Land Record Systems

2.1 OVERVIEW

2.2 METES AND BOUNDS

2.3 UNITED STATES PUBLIC LANDS SYSTEM

2.4 PLATTED SUBDIVISIONS

2.5 COMBINED RECORD SYSTEM DESCRIPTIONS

Chapter 3: Directions

3.1 ANGLES

3.2 MERIDIANS

3.3 BEARINGS

3.4 CURVED LINES

3.5 AZIMUTHS

3.6 COMPASS DIRECTIONS AND HEADINGS

Chapter 4: Map Projections

4.1 GENERAL

4.2 PROJECTIONLESS MAPS

4.3 CONFORMAL PLANE PROJECTION

4.4 APPLICATION

Chapter 5: Platting to Describe

5.1 GENERAL

5.2 ORIGINAL SURVEYS

5.3 RETRACEMENT SURVEYS

5.4 PRESERVING THE EVIDENCE IN WORDS: A CASE STUDY

5.5 REFERENCE TO PLATS IN DESCRIPTIONS

Chapter 6: Composing, Comprehending Descriptions

6.1 GENERAL

6.2 HIERARCHY OF CALLS

6.3 CAPTION

6.4 BODY

6.5 ELEMENTS OF THE DESCRIPTION

6.6 PUNCTUATION AND LANGUAGE

6.7 DEED DISCREPANCIES—CONFLICTS

Chapter 7: ALTA/ACSM Surveys

7.1 LAND TITLE INSURANCE

7.2 ALTA/ACSM SURVEY STANDARDS

7.3 MANDATORY REQUIREMENTS FOR ALTA SURVEYS

7.4 ACCURACY STANDARDS

7.5 INFORMATIONAL OPTIONS

7.6 THE DESCRIPTION FOR AN ALTA/ACSM SURVEY

7.7 THE SURVEYOR IS IN CHARGE

Chapter 8: Situational Awareness

8.1 DEED DISCREPANCIES—CONFLICTS

8.2 PROFESSIONAL RESPONSIBILITIES

8.3 REGIONAL LEXICON AND LOCAL PRACTICE

8.4 INTRODUCING UNIFORM LANGUAGE

8.5 BREAKING OLD HABITS

Afterword

Table of cases

Index

This book is printed on acid-free paper.

Copyright © 2011 by John Wiley & Sons, Inc. All rights reserved.

Published by John Wiley & Sons, Inc., Hoboken, New Jersey.

Published simultaneously in Canada.

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Library of Congress Cataloging-in-Publication Data:

Estopinal, Stephen V. (Stephen Vincent) Professional surveyors and real property descriptions : composition, construction, and comprehension / Stephen V. Estopinal, Wendy Lathrop. p. cm. Includes index. ISBN 978-0-470-54259-0 (cloth: acid-free paper); ISBN 978-1-118-08466-3 (ebk); ISBN 978-1-118-08467-0 (ebk); ISBN 978-1-118-08468-7 (ebk); ISBN 978-1-118-08584-4 (ebk); ISBN 978-1-118-08630-8 (ebk); ISBN 978-1-118-08632-2 (ebk) 1. Surveying. 2. Surveys—Plotting. 3. Real property. 4. Map reading. I. Lathrop, Wendy. II. Title. TA545E87 2012 526.9—dc23 2011013565

Foreword

Land. Language. Law.

As readers of documents that address every aspect of land—its location, its character, its physical dimensions—surveyors and title examiners and attorneys must all be intimately familiar with the variety of possible interpretations and misinterpretations. Strange and unusual things happen when language is not clear and the law is therefore misapplied.

Throughout our professional careers, we (the authors of this book) have had a wide variety of experiences, often ordinary, sometimes intriguing, sometimes frustrating, related to land descriptions. Our purpose in undertaking this topic is to improve the written record relating to land and to reduce the legal problems associated with poor or unclear descriptions. When the law must be imposed because of problems with the description, everyone suffers, whether monetarily or emotionally. Real property boundary descriptions, land descriptions, must be clear and concise and preserve all the evidence pertaining to boundary location. Often, land descriptions are the only surviving source of information pertaining to a parcel's location. When these documents are missing, incomplete, or ambiguously written, we play a losing game of forensics in locating limited and full ownership interests on, above, or below the earth's surface.

In this volume we examine the land description in the context of time and history to understand how to improve documents we write and how to increase our understanding of those we read. We include history of language, of record keeping, and of surveying, and illustrate the consequences of failure to communicate with court opinions. We hope that the background information provides a lively context to the topic.

CHAPTER 1

INTRODUCTION

1.1 PROPERTY

In general, “property” is something that belongs exclusively to someone, whether that “someone” is an individual, a family, a corporation, or other entity, either private or public. As territorial creatures, humans on this continent tend to protect what we consider to be our own property, to keep others from taking it away from us, and to assure ourselves of the entirety of what our property is. Writing descriptions of what we believe we own and the means by which we acquired it is one means of establishing our claims to that property, and this theme will reappear throughout this text.

There two distinct classifications of property, personal, and real, each treated separately and quite differently by our laws.

1.1.1 Personal Property

Generally, if it is movable, property is personal. If property is not land or interests in land, it is personal.

In terms of the law, there are both tangible and intangible forms of personal property. Movable, tangible items such as furniture, merchandise, and livestock fall into the category of “corporeal” personal property, meaning that it has a corpus, a body. However, we can also have intangible personal property. This includes intellectual property: the thoughts in our heads that result in great inventions and the results of our research in the form of reports or other documents. Intangible personal property also encompasses representations of money, such as stocks and bonds.

1.1.2 Real Property

While there are various distinctions within each of the broad realms of personal and real property, we'll be addressing one very narrow category within the latter, focusing on land. This text is about real property and various ways that we describe it.

Real property, in contrast to personal property, is immovable either in fact or by law. It consists of land, buildings and other physical fixtures to the land, along with whatever rights can be exercised in relation to that land either inside or outside of the boundaries of the tract in the form of interests, which we will define in more detail in the following sections.

1.1.3 Ownership

Black's Law Dictionary defines ownership as:

Collection of rights to use and enjoy property, including right to transmit it to others. … The entirety of the powers of use and disposal allowed by law … The right of one or more persons to possess and use a thing to the exclusion of others.

This description tells us that “ownership” is not synonymous with “possession.” Instead, it includes not only “possession” but also the rights to prevent others from having possession and to exclude them from the property. “Ownership” also includes the right to sell or give away the property in a variety of ways, to divide the land, to put it in a will to future heirs, to allow some to enter the land and to prevent others from using or accessing it. Ownership even includes the right to “waste” land by physically destroying it.

This last right is, of course, limited to some extent by the various laws and regulations preventing us from doing harm to others. So while we may not be able to dump toxic materials onto our land because they will leach into the water table and affect others in our community, we can perhaps excavate a deep cavern or remove broad swaths of forest, actions that would prevent others from using the land for construction or other possible future uses.

In general, ownership provides us various powers of free action that are protected by the legal system. The exercise of this “sovereign right” over our property is somewhat limited by local land use, zoning, and subdivision ordinances, but we have the right to appeal for waivers from such regulation. We are also required to act within a period of time defined by state law in order to protect our ownership from claims of ownership or use by others, a period of time known as a statute of limitation, which varies among the states.

1.1.4 Possession

Now to see the other side of the issue, we'll look at Black's Law Dictionary to see what it has to say about possession:

… The law, in general recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. … [Emphasis added]

We have two basic flavors of possession: physical and legal. These may be the same, or they may differ considerably—and that has been the cause of many a battle between neighbors or long-lost claimants to real property.

Actual possession means that I am actually, physically on the land. Maybe I don't live on it, but I might be farming it, or cutting trees on it, or fencing it in for my cattle to roam. Or maybe I lease it to someone under the claim that I have a right to offer actual possession to someone else. The area that I occupy or use, or give someone else the right to occupy or use, is the area in my actual possession. This says nothing about my right to possession, merely that I do have it.

In contrast, constructive possession gives me the legal right to be on property even though I might not physically occupy the land. A deed gives me constructive possession; it transferred someone else's rights to possess the land to me, even if I never step foot on it. Perhaps I live in the Caribbean full time and never visit the land for which I have a deed in West Virginia. I still have constructive possession of that land through the deed that announces to the world (or to the world that cares to research it) that I have the right to be on that land when I wish without asking permission from anyone except perhaps those to whom I've given the right of actual possession through a lease or other agreement.

The term possession comes from the old English seisin, sometimes spelled seizin. The root of the ancient verbiage makes it clear that it is distinct from ownership, although one with seisin may also actually own the land.

1.2 TITLE AND INTERESTS IN REAL PROPERTY

If ownership is a collection of rights in land, title is the union of all the elements that make up ownership, a merger of all the rights in and to property. Black's Law Dictionary tells us that “Title is the means whereby the owner of lands has the most possession of his property,” thereby uniting the concepts of both ownership and possession.

Much of the legal framework by which we use, own, and convey real property comes from European roots, some of it French (as Napoleonic law in Louisiana), some of it Spanish (as in California, Texas, and other areas formerly under Spanish rule), and much of it English. The most common is the English system, and that will be the primary focus of this text. Due to the various historical bases in different parts of the country, surveyors should always research and be familiar with laws in the areas where they practice.

Much of our legal system relating to real property and the language we use when discussing real property arises from English feudal roots. For this reason, that historic background provides useful context for understanding modern treatment of land and land rights.

1.2.1 The Concept of Title

Private ownership of land is a relatively recent concept in the history of humankind. The rise of royalty in Europe brought with it “ownership” of all the conquered land, meaning that the people actually residing on and working the land were merely there at the pleasure of the monarch.

The concept of a monarch or sovereign owning everything crossed the oceans to the New World, and all the explored and settled lands on this continent were claimed in the name of a monarch who never set eyes nor foot on it. This did not prevent kings and queens from granting lands to settle debts—as the king of England so famously did in granting Pennsylvania (literally, “Penn's Woods”) to William Penn—or as favors to those who had provided special services or had particularly pleased the monarch. Of course, such grants ignored the fact that there were already people on the land, Native Americans who had no concept of private land ownership and instead treated it as communal property to be kept in stewardship.

American property law and our language related to land are primarily based on the old English feudal system of ownership, which originated during Europe's Middle Ages. This was a method by which the monarch (who claimed ownership of all the land as holder of the crown) controlled all lands throughout the kingdom. Recognizing that it was impossible to control all the land alone, the monarch granted a feud—also called a fiefdom, a fief, a feoff, or a fee—to those who swore loyalty to the crown, or to the lords who in turn had sworn their loyalty to the monarch. This feud or fee was the right to possess the land, but not necessarily ownership of it.

The holders or possessors of the land thus granted were called tenants, and tenure described the terms of their right to hold the land (their tenement). Tenure might consist of a number of bushels of corn to be paid annually, or military service, or any other service or payment demanded by the distant owner. The tenant's rights to the land were also called his estate, forming the basis for the modern phrase real estate.

The modern term estate refers to the degree, extent, and nature of interest that an individual has in real property, with interests in land being that person's right, claim, legal share, or title in it. It may be that an estate contains less than full title or interest in land, a matter that will be discussed shortly.

Tenancy, or occupation and possession of land, could be of two sorts, free and unfree, with different rights or interests associated with each. Free tenure is the modern freehold estate, to which some of the centuries-old elements still apply. Unfree tenure is an estate of less than full ownership, having fewer terms of freedom in holding the title than are available to holders of free tenure. Current equivalents are leases and other limited interests in land. With an unfree tenure, the tenant, or possessor of the land, does not have the same rights of selling, dividing, or willing away the land as does a holder of free tenure.

In the feudal system, the tenant of the land was required to swear loyalty (fealty) to the grantor, the lord of the land (landlord). The ceremony of swearing fealty was called homage, an acknowledgment of the limited right to be on the land but not necessarily to own the land; more precisely, tenants had possession rather than ownership, and could not sell it without the lord's consent or pass it on to their heirs after the tenants’ death. If a tenant wished to dispose of land to which he had been granted seisin (possession), the lord who had granted that possession (the landlord) retained the right of first refusal, called primer seisin (first claim of possession), as well as inheritance tax (relief) in the form of a year's worth of yield from the land upon the transfer of real property interests to heirs of a deceased tenant.

A lord's dominion over the property (although technically held in trust for the monarch) was at the expense of his responsibility to protect the tenant's rights and to pay ransom (called aid) to restore those rights or retrieve land that was unjustly occupied. At the same time, the lord (or the crown) received a “fine for alienation,” or a fee for the free and voluntary transfer of land (the current real estate tax), as well as reversionary rights to the land when the freehold tenant had no heir, a situation still called escheat from those early days of private land stewardship. In modern times, the state government in which a property lies gains ownership of it by escheat when a deceased landowner has no heirs and no will.

Terms of “unfree” tenancy included wardship and marriage, meaning guardianship of a deceased tenant's children until age 21 for boys and until 14 or marriage (whichever happened first) for girls. Under freehold estates, guardianship ended upon the heir turning 15, with the guardian making annual reports to the lord about the profits from the land. Wardship created a situation in which minors below the stipulated ages could not control inherited rights to land; the lord had an obligation to pay for the living expenses of his wards but kept all excess revenue. This system also required the lord's permission to marry, otherwise risking loss of any interests in land that would otherwise have been inherited by the tenant's heirs.

While the most common means of acquiring land rights was tenure by chivalry or knight service (requiring provision of fully equipped knights to serve 40 days of military service annually—an unpredictable any 40 days, and without the possibility of returning home if the 40 days were completed in the midst of battle), other services to the lord or monarch could also qualify. Serjeanty (service) tenure required personal service (perhaps arrows or horses for the militia, or meat for the king's palace), while spiritual tenure required provision of regular religious services. Frankalmoign (free alms) entailed a general duty to pray for the soul of the land donor without having to provide other religious services. Churches gained much of their vast holdings through providing various divine services to gain spiritual tenure.

In feudal times socage (pronounced soak-idge) was a land tenure gained in exchange for small and specific services (agricultural or nonmilitary in nature) or a land tenure for payment of rent in money. This made a tenure by socage much more certain and predictable than a tenure by knight service. Of the two original types of socage, the one remaining today is “free and common socage,” in which the services supplied in exchange for rights to land are certain, The certainty of the terms of free and common socage is in sharp contrast to the former villein socage or villeinage in which the services to be provided were not so certain and resulted in an “unfree” tenure that could not be conveyed by the tenant. Eventually, tenures by knight service were converted to free and common socage tenures.

Leaseholds are the most well known modern example of estates of unfree tenure. A lease, meaning any agreement that creates a landlord/tenant relationship, is a contract for exclusive possession of land for a specified period of time. At the end of the lease, all rights revert to the lessor (the grantor of the lease), the landlord. Our discussion of “less than freehold” and unfree estates as limited estates will provide additional examples.

1.2.2 Fee Simple

When we speak of fee in land (formerly the feudal fief or feoff), we are referring to title, which is the most complete bundle of interests in a tract of land. The term fee in and of itself merely notes that interests can be conveyed by a will, but conditions relating to a transfer by any means may be subject to prior specified terms and stipulations.

Simple means that there are no restrictions placed by others on the land—no liens, no mortgages—and so the interests are fully transferrable. As a result, when we speak of fee simple title, we mean a title that is free and clear of any restrictions that would prevent the grantee or new owner the right to use and dispose of the land in whatever way he or she wishes.

Absolute means that there have been no restrictions placed on the land by the grantor, the one who gave up the land—no rights of reversion or future interests exist. The new owner can convey the land to anyone by any means with no conditions attached to that transfer.

Therefore, fee simple absolute is the clearest title, subject only to those conditions agreed to or imposed by the new owner of the land, the recipient who is the grantee in the transfer transaction.

1.2.3 Limited Title

Title to real property may be qualified in a variety of ways, and in some instances a limited title provides less than 100 percent of the full ownership interests in a tract of land. This may be due to shared or joint ownership so that each partner in title has some percentage of ownership and therefore no single partner has full and independent control over the property.

Condominium ownership is a combination of full fee simple title and limited title; the residential or commercial unit in the condominium is fully owned by the person or entity holding the deed, but ownership of the common areas is shared with every other owner in the condominium. This arrangement prevents any single person from single-handedly acting to dispose of the commonly owned property or to affect its use. Each member of the condominium holds a percentage of ownership interests in those common areas, interests that are both limited and protected by the very arrangement of this particular form of ownership.

1.2.3.1 Fee Tail Estates

Fee tail estates are limited interests first created during the feudal system, intended to keep property in a family line through successive generations. While most jurisdictions have voided statutes addressing this type of estate in order to eliminate it, fee tail estates were originally created by conveying to an individual and “the heirs of his/her body” to prevent property from going to stepchildren or non–family members after death of the grantee. This fixed line of succession could be a fee tail female (inheritable only by female heirs), fee tail male (going to male heirs), or fee tail general (male or female).

1.2.3.2 Determinable Title

Determinable title is another form of limited interest in real property. Language in deeds conveying determinable title includes phrases such as so long as, while, during, or until. These terms of limitation provide for automatic expiration of the purchaser's or grantee's fee simple title and reversion of rights on occurrence of a certain event. This reversion returns title to the grantor of the interests (the grantor being the one who granted the deed conveying interests) or that grantor's heirs (as stated in a will), successors (those receiving interests by means of other conveyances from the grantor), or assigns (those outside the will or chain of title to whom the grantor wishes to grant rights). While the grantee of a determinable title may convey his or her determinable interests, later grantees take title subject to the same conditions as established in the original conveyance even though the word revert is not necessarily present in any of the later deeds.

1.2.3.3 Defeasible Title

Defeasible title is a limited interest created by documents that specify a purpose or conditions under which the real property may be used. The main distinction between determinable title and defeasible title is that determinable titles will revert when a certain event occurs, ceases to occur, or does not occur, while defeasible title may (or may not) revert. As with determinable title, defeasible titles will state the conditions triggering reversion, along with designation of the recipient of the reverting interests (which can be sold separately from the defeasible or determinable interests). Discerning the difference between determinable and defeasible titles can sometimes be tricky, and the context of the documents granting the original rights must be examined carefully in light of the language used at the time of the transaction and contemporaneous conditions.

A case that may help to illuminate the distinctions between forms of title as discerned from the written documents is United States Trust Company of New York v. The State of New Jersey.1 The core of the dispute begins with a deed issued in 1894 to the United States for an area of Monmouth Beach, New Jersey, in exchange for $2,400. The acquisition came about to comply with an 1875 Congressional Act that provided funds to establish “sites for Life-saving or Life-boat Stations, Houses of Refuge, and sites for Pier-head Beacons.”

Nearly a century later, the successors to the original 1894 grantors argued that the title had reverted to them because the United States had ceased to use the property as a lifeboat station in 1965. In that year, the United States vacated its use of the property, but permitted the state of New Jersey to use it for the same purposes as the United States had. In 1968, the United States deeded most of the parcel in question to New Jersey for $29,800. Nearly 20 years later, when the litigation began, the value of the beachfront property was well over six figures, and successors to the original grantors sought to regain this valuable site, basing their suit on deed verbiage that mentioned both the 1875 Act and the lifesaving station purpose.

However, the 1894 deed must be read as a whole to determine if in fact it did create a determinable title. The deed itself was of the boilerplate variety, a standardized form used for all such acquisitions in relation to the 1875 act. It did not contain any words limiting the rights acquired by the United States, and merely cited the act that provided the funding and impetus for the purchase, thereby establishing intent. Furthermore, the price paid in 1894 ($2,400) was well more than a nominal fee, or a sum that would merely satisfy the requirement for payment as an element of a valid contract. The court pointed to another transaction in the same time frame using the same boilerplate deed for a similar tract in North Carolina for which the United States paid only $100.

Finding no expressed intent for the property to revert to the grantor if the stated purpose ceased, no other language indicating limitations, and a payment of full fair market value, the United States Trust Company of New York was denied its claim of ownership (based on its interpretation of the 1894 deed as conveying only determinable rights), and the court confirmed full unfettered fee simple rights in the State of New Jersey.

1.2.3.4 Life Estate

Yet another form of limited title is a life estate. This is a set of interests conveyed to someone for the period of someone's life—whether that of the grantor, the grantee, or some other specified person. Sally can give Cousin Fred a life estate in the old homestead for so long as he lives, which means that anyone to whom Sally conveys the property must honor Cousin Fred's right to be on the land. At the same time, while Cousin Fred can treat the land as if he owns it, he can't do anything to destroy the future interests of Sally's successors and assigns; he can't subdivide and sell off part of the property, and he can't build a 43-story office building on it without Sally's permission. He can, however, lease the land to a gas company provided that the lease does not exceed Cousin Fred's own rights to be on the land either in terms of time or in terms of access to the site.

Sally can give Cousin Fred a life estate for so long as she lives, so that when Sally passes away, Fred's interests cease unless he is named in the will or he purchases the property from those who are named as heirs. Or Sally can give Cousin Fred a life estate for so long as Sally's husband lives, thereby possibly protecting her husband's and children's interests in the land while providing somewhat less assurance to Cousin Fred that he will be able to finish out his days in the house where he spent his childhood.

All of these scenarios are variations of the life estate, and they are all determinable estates. They cease to exist upon the end of a particular person's life, a very specific condition that definitively terminates the interests of the life estate grantee. It should be noted at this point that a life estate, in any of the forms described, is an example of “less than freehold” or “unfree” estate because of the reversion of rights to the grantor (or the grantor's heirs, successors, or assigns) upon termination of the specified period.

As a carryover from feudal days, we still use the terms dower and curtesy, each originally being a limited title in a spouse's real property. In English law, dower was a one-third interest allowed to a widow in her deceased husband's real estate, in the form of a life estate after his death. At the same time, curtesy was the life estate given to a widower to any real estate owned by his deceased wife, but it was a full life estate interest rather than the mere fraction granted to women. Modern laws have changed both dower and curtesy from life estates to absolute fee interests in a deceased spouse's estate.

1.2.3.5 Estate for Years (and Variations)

Very similar to the life estate is the estate for years, which is granted for a specified and definite period time – whether for a month or for 2,000 years. The time of its termination is known, certain, and definite, no matter its length. In the United States, railroads often received these kinds of “unfree” tenures in land for periods of time probably considered semipermanent at the time of their creation, such as 50 or 99 years. The difficulty with such long tenures is that the parties—or their successors and assigns—often lose track of the need to renew them, and the grantee may actually be continuing use of the land long after the estate for years has expired. This gives rise to another form of interest in property that will be discussed under easements.

Most beneficial to the grantor, and not always so for the grantee, is the estate at will, a variation on the estate for years but a tenancy that may be terminated at any time by the lessor (the one who created the estate) or by the lessee (the one who enjoys the limited interest in the property). This is often a month-to-month tenancy.

An estate at sufferance is the lowest grade of estate in real property and the lowest form of unfree tenure, held by one who retains possession of land with no title at all, such as a tenant whose lease has expired. This hanger-on becomes a “tenant at sufferance” as long as the landlord/lessor “suffers” or permits him to remain on the property. An estate at sufferance differs from merely trespassing or squatting on property since the original entry was by the owner's permission.

1.2.3.6 Quitclaims

Finally in our discussion of limited interests, there is the quitclaim deed. Such a document merely releases or relinquishes any rights that the grantor may have in the land, but does not state that the grantor actually had those interests in the first place. There is no claim that the title being transferred is valid, no warranty or guarantee in the title to the land supposedly being conveyed. Therefore, if someone with a better (or more legally defensible) claim to title comes along, the holder of a quitclaim deed may not be able to retain the interests contained in his or her deed. Anyone can sell you the Brooklyn Bridge, but only one entity has legal title to it that will actually give you ultimate true legal ownership of that structure. Thus, only one entity (the true owner) can provide anything other than a quitclaim deed.

1.2.4 Easements

Black's Law Dictionary defines the term easement as:

An interest which one person has in the land of another. … An interest in land in and over which it is to be enjoyed, and is distinguishable from a “license” which merely confers personal privilege to do some act on the land. [Emphasis added]

While “interests” were discussed earlier, we have not yet defined license, and the distinction between a license and an easement is important. A license provides very specific rights that can be exercised by only a very specific party during a very specific time, and the rights granted by the license can be revoked if the terms of holding those rights are violated.

For example, a generic driver's license grants a single person a right to drive specific kinds of vehicles (generally only certain four-wheeled vehicles, and not big rigs, school buses, or motorcycles), and the license must be renewed on a regular basis. If the holder of a driver's license maneuvers a vehicle improperly enough times to earn numerous tickets and points, that license can be revoked by the state motor vehicle agency that issued it.

In terms of real property, a license may allow a lumber company to enter a tract of land over a certain route to cut certain kinds of trees (perhaps by size or species) in a specified area for a particular period of time, in exchange for a stated payment or perhaps provision of split logs for the landowner's fireplace. If the holder of the license cuts the wrong trees or does not make the proper payment, the licensor can revoke all rights. A license in land differs from a leasehold (the “unfree tenure” mentioned earlier) in that a lease transfers possession while a license merely excuses actions on land in possession of another that without the license would be considered trespass. The license is revocable at the will of the possessor of the land and conveys no interest in the land. When possessors are not the owners of the land, they may grant no licenses harming or lessening the interests of the owners.

Going a step further, the primary difference between a license and an easement is again that the license is subject to termination by the possessor of the land and conveys no real property interest, while an easement is not revocable and does create an interest in land. Otherwise, while it is easy to point to examples of easements, it is not always simple to distinguish easements from the exercise of other rights. Easements can be in the form of the right to use a roadway across someone else's land, or the right to place a pipeline under the land owned by another, or the right to flood an adjoiner's property.

The parties to an easement are the dominant estate and the servient estate. The dominant estate is the one benefiting by the easement, the one with dominion and ability to exercise the easement rights, and is conveyed “together with” those rights. The servient estate is the one “subject to” the easement, the one burdened by the right of the dominant estate, the one that must allow and not interfere with the exercise of the easement rights.

There are numerous types of easements, the most common being appurtenant easements that travel along with the transfer of both the dominant and servient estates, whether or not the easement is mentioned in later deeds. They generally do not terminate until owners of both the dominant and servient estates agree to termination, unless conditions had been established as previously described for determinable and defeasible title. The term appurtenant refers to the attachment of the rights to the land.

In contrast to appurtenant easements are in gross easements that generally are nontransferable and cease to exist when the easement holder no longer owns or uses the dominant estate, due either to transfer of title or death. These are the personal easements in gross with which we are most familiar. One of the authors of this book received a call from an elderly lady complaining that her new neighbors would not allow her to use her driveway to get to her garage. It turned out that “her driveway” was actually a secondary means of access running over part of the adjoining lot (despite the presence of a separate means of less direct access to her garage that existed completely on her own property) that she had been using for over 40 years. The resulting agreement with the new neighbors was a personal easement in gross to my client, allowing her to continue use for as long as she resided in her house, a right not transferrable to her heirs or to anyone to whom she might rent or sell her house. The easement would terminate when she no longer lived there, even if she still owned the house, and was recorded in a deed clearly outlining these conditions, memorializing the intent and purposes of the agreement.

There are also commercial easements in gross, which, unlike personal easements in gross, can be transferred from one party to another for the same purposes, although the dominant estate must negotiate with the owner of the servient estate and possibly also seek regulatory permission for such a transfer. The commercial form of an easement in gross terminates when the purpose for the easement terminates, and can be divided into fractional interests to provide percentage ownership to shared holders of the dominant estate in order to guarantee each a right to use a certain amount of an easement in terms of physical space. It also allows joint use, such as pole attachment agreements or sharing a trench (although in this last situation state law may require new negotiation with the owner of the servient estate).

As an example of a commercial easement in gross, Ms. A conveys a gas pipeline easement to Company X, which may convey its entire interest or only a portion of its interest to Company Y. Upon the demise of Companies X and Y or upon their transfer of interests to another company, the easement does not terminate as long as the use for which the easement was granted continues.

Because of the complexities involved with proper use and transfer of easements in gross and the changing burden that may be placed on the servient estate, the majority of jurisdictions rule in favor of appurtenant easements over easements in gross when there are questions as to the form or nature of the easements involved. Deed language must clearly define the intent of the parties in creating either form of easement, the allowable uses, and any conditions under which the easement will terminate or must be renegotiated.

Aside from these two main categories of easements, there are numerous qualifications describing easements. Affirmative easements allow the holder of the dominant estate to perform some action on the servient property, such as the right to install a water pipeline. Negative easements prevent the servient estate from performing some action that might otherwise be lawful, such as conservation easements that disallow buildings or tree removal in certain areas, or light easements that prevent construction exceeding a certain height that would obstruct natural light from entering windows in a building on an adjoining site. Secondary easements are appurtenant to the actual easement, and provide the right to do what is necessary to fully enjoy the primary easement itself, such as the right to maintain it. Even when not expressed, every easement includes such secondary easements, although it is, of course, in the best interests of all involved when the specific rights and limitations associated with an easement are committed to writing in clear and specific language.

A right-of-way is generally the right to use the land of another in a particular linear route, and the term is often used interchangeably with the word easement. In some contexts and jurisdictions, the term may also apply to the physical strip of land to which title has been granted in fee simple or defeasible fee simple subject to a particular use, such as for a highway or railroad. The determination of whether right-of-way is meant as “easement” or as “strip of land” is often gathered from the full context within the documents creating rights-of-way or research into historical practice. This is one of the reasons why clarity of expression and intent are so important when writing descriptions: is a deed granting only a right to use a long linear tract, or is it granting full title in that strip of land?

The public or private status of a right-of-way, when the term is meant as “easement,” establishes who may use it. For a public right-of-way, easement rights are given to the public in general and to every individual person to use the right-of-way for the purposes for which it was granted, such as in a public highway right-of-way, without any special permission needed for anyone to utilize it. Every driver of a motor vehicle has the right to drive on a public road right-of-way. Generally, public utilities have the right to occupy a public right-of-way without more permission than is required by state statutes and regulations.

But only certain named persons or entities have the right to use a private right-of-way. The whole world may not use a private way over privately owned land without permission; the risk is prosecution for trespassing. A utility also does not have the right to enter a private right-of-way without permission of the owners of the underlying title in that private way. Because public rights-of-way sometimes are relocated, the land often reverts to private ownership. A utility that is beneath a public way that has been vacated or terminated by some other means must now negotiate with the private owners of the land if it wishes to remain in place. There are often statutory provisions granting utilities time to negotiate or sometimes even the power to exercise eminent domain to condemn a right-of-way so that its facilities can remain in place. Again, the terms of an easement or right-of-way as expressed in the process of creating those rights are essential for determining who may use a right-of-way for what purposes, and in defining what protective measures have been put in place to protect both the dominant and servient estates as conditions change over time.

Covenants are promises between parties that are not in the form of conveyances, but generally have the effect of restricting use of one party's land for the benefit of the other party when recorded in a deed that transfers title to a property. For example, the owner of a development may place a covenant in deeds for the tracts within the subdivision that no garage may be constructed closer to the road than 50 feet from the rear property line, with the intent of maintaining a certain look or upscale ambience in order to maintain high appraisal values. The covenant is a form of contract, and therefore differs from an easement in that breach of a covenant may result in punitive actions and damages, while abusing an easement may result in its termination.

1.2.4.1 Recorded Easements

Recordation of a document provides a means by which the world at large can discover the existence of a land transaction, in this instance for the creation of an easement. In written transfers of property including easement rights, those rights are created by express grant.

This method is exactly as the words plainly state: the grant of easement rights is expressed in words specifying the intent and extent of the easement. The express grant may be included in a deed for conveyance of full title that includes easement rights to which the property either is subject (servient) or is the beneficiary (dominant, and conveyed together with the easement rights).

Easements by express grant can be created by deed, by will, or by means of some other written document.

1.2.4.2 Unrecorded Easements

But sometimes the parties in a real estate transfer don't quite express their intent in the written transaction, although it is clear by the surrounding circumstances that certain easements were intended to be included in the conveyance. In such instances, easements may be created by implied grant. Strictly speaking, implied easements are based on the principle that when grantors sell some portion of their land rather than all of it (whether a subdivision of a parcel or one of several adjoining tracts), they grant by implication all the apparent and visible easements that they as the former landowners previously used in order to reasonably enjoy the portion now being conveyed. For this principle to apply, the area now subject to an implied grant must have been used prior to the subdivision of the overall tract as the means of passing between what are now the newly divided parts of that tract.

For example, Marla owns a parcel that she divides into three contiguous tracts, two of them (Tracts A and C) fronting on two different and parallel public roads, while the one in the middle (Tract B) has no direct frontage (see Figure 1.1). She leases out Tracts A and C to others, but lives on Tract B, and regularly crosses over Tract A to access Tract B. Since she owns both Tract A and Tract B, she does not have an easement over Tract A: an owner cannot have an easement in his or her own land, primarily because there is no need for permission from oneself to use one's own land. But when Marla sells Tract B to Dante, he won't have that same privilege to cross Tract A. Because it is a usual and well-established means of accessing Tract B, the right to use that path over Tract A is conveyed as an implied easement to Dante even though it is not specifically mentioned in the deed he obtains from Marla.

FIGURE 1.1 The dashed line represents the path historically traveled to Poplar Avenue (a public road) from the house on what is now Lot B, creating an implied easement.

If the grantor keeps the land that is subject to the easement, it is an easement by implied grant, but if the grantor keeps the land that requires the easement, this is an easement by reservation because the grantor will reserve an easement to himself or herself. But usually this is a matter of strict or absolute necessity to use the property. If another alternative exists, most courts will not create implied reservations.

Because easements by implication can also be created through long, permissive, and equitable use (not overburdening the servient estate), the intention of creating an implied grant must be assessed on a case-by-case basis, looking at the particular facts surrounding the use of the property and the reasonableness of the use of the presumed easement.

Another means of unwritten creation of easement rights is by presumption of lost grant. Some jurisdictions presume that if landowners fail to object to use of their land by others, as if an easement existed, then the adverse users must have had a right to be on the property. The presumption of the “lost grant” is that at some point in the past the user of the presumed easement had been given the right to use the property. When no written documents exist, this presumption is particularly applicable to utilities, in the belief that someone must have requested service and the utility complied. Alternatively, for utilities with powers of eminent domain, it is generally assumed that condemnation has occurred and that the time set by the statute of limitations for claiming just compensation has passed.

In simplified terms, the distinction between the presumption of a lost grant and adverse use comes down to the question of “Which party must prove that the use was not permissive?” For a lost grant, it is the property owner (servient estate) who must prove that there was no agreement as to the use. For adverse use, it is the adverse user (presumed dominant estate) who must prove that the property owner had never granted permission.

1.2.4.3 Statutory Easements

Easements by necessity are a slight variation on the idea of easements by implication. At one time the landlocked parcel was part of a larger tract that had access to public roads. But now there is strict necessity for an easement—the property cannot be used without an access easement. Since division from common ownership of other land having road access creates a new landlocked status, generally the way of necessity is created at the time of the severance, although the specific way did not have to be in use at the time of that division (unlike implied easements). State laws prohibit creation of new landlocked parcels and impose easements by necessity, whether expressed or not, for reasonable enjoyment of tracts, making them usable. The concept of reasonable is very fact-specific, and often is the primary source of contention in establishing such easements.

But statutes addressing easements by necessity generally establish a means for a landlocked parcel to access public roads when the grantor has no remaining lands to allow the grantee to cross. In such situations, the owner of the landlocked tract has the force of law supporting a claim of right in negotiating with owners of adjoining lands for an easement providing the landlocked owner access to public roads.

Laws do not require that the shortest and/or most convenient means of access be allowed to the landlocked owner, only that some means be available over somebody's land due to necessity. Thus, many adjoining owners can refuse the right to cross as long as one agrees to allow the easement. The ultimate grantors of an easement by necessity over their lands can set the terms of location, width, and other conditions for use (perhaps involving erecting a new gate or locking an existing one).

Another means of creating an easement through the function of law is by prescription. This entails long and continuous use of property for a specific purpose in a manner that would allow the owner of the land to know that someone was using his land over a period of time established by state statute as sufficient to allow the owner of the land to evict the trespasser. The use is unrelated to any written document, but is carried out under a claim of right. The rights gained by such use are called prescriptive rights. The process of prescription is similar to gaining rights by adverse possession, but reflects only the claim of a right to use the land rather than a claim of ownership.

Once the statutory period of time that would allow the landowner to evict the user of his land has elapsed, the prescriptive easement has been created without any written or recorded document. It is not until both parties acknowledge the situation, either on a friendly basis or under the threat of lawsuit, that the prescriptive rights are set down in writing and recorded in the hall of records to notify all who care to research the title records that the easement does exist.

The most forceful statutory means of creating easements is the exercise of the power of eminent domain, or the right of condemnation. Lawmakers at both the state and federal levels have identified certain entities that provide essential services to the public and have created statutes to define who may condemn and under what conditions; the prime considerations are public use and necessity. Government agencies may condemn easements when the purpose is to benefit the public. Therefore, a county may condemn land to create a new public road, but it cannot condemn land to create a new restricted-use parking lot just for police vehicles, an area that the public would not be permitted to enter. Each state has its own statutes establishing which utilities are so vital to public welfare that they are granted powers of eminent domain in order to carry out their public services. Therefore, while every state considers water an essential public utility, not every state considers cable television similarly important, so that the first utility may condemn easements while the second possibly may not.

While statutes acknowledge the establishment of easements by necessity, by prescription, and by condemnation, they do not necessarily require any documentation in writing of these statutory means of creating rights to use someone else's land. Instead, particularly in situations of necessity and prescription, the statutes define the conditions under which these means create legal rights, and these laws are the basis for arguments in lawsuits. Unfortunately, all too often a judge will rule that, yes, an easement does exist, but then forgets to order a deed to be written memorializing the location, size, and purpose of the easement so that it can be recorded as prevention of future duplicative litigation. Surveyors engaged in such cases should remind the lawyers involved that recording the outcome in the public records serves to preserve the court ruling.

1.2.4.4 Distinguishing between Means of Creating Easements

In the process of describing so many means of creating easements, some of the distinctions may have blurred. The case of Custom Warehouse v. Lenertz (975 F. Supp. 1240, U.S. District Court for the Eastern District of Missouri, Southeastern Division, 1997) compares several of the methods we have covered and describes how the courts distinguish between them. Figure 1.2 shows the general relationship of the properties involved in this lawsuit.

FIGURE 1.2 Custom Warehouse v. Lenertz.

Attempting to cover all the bases, Custom Warehouse argued it had the right to use an easement over land owned by Frederick Lenertz, Sr., by prescription, by implication, or by necessity. Custom Warehouse wanted the court to declare the “extent and parameters” of the easement it claimed and the location and condition of its deeded ingress/egress easement.

In 1985, Lenertz and his brother had bought about 21 acres from various members of the Howard family. This entire tract was undeveloped farmland, with a creek running through it. Highway 177 bounded it to the south, and a county road formed its eastern boundary.

Lenertz and his brother graded about 12 acres of their acquisition, and covered it with gravel to be a “drop lot” for semi-trailer trucks to pick up and drop off trailers for the nearby Procter & Gamble plant. They installed fencing and a guard shack at the only entrance, from Highway 177, for security purposes. The drop lot began operations in 1985.

Later that same year, Lenertz bought another tract, just north of the first acquisition. At the end of the year, Frederick Lenertz bought out his brother's interest in the northwest part of their drop lot so that he now fully owned that portion in fee by himself.

In 1986, Lenertz bought another 20.59 acres along the southwestern and northwestern edges of the original drop lot, and began grading this along with his 1985 acquisition in order to build a warehouse to use in conjunction with the Procter & Gamble drop lot operations.

A few months later, a joint venture (JV-1) formed to buy Lenertz's land to the north of the drop lot (his 1985 acquisition) to build that warehouse. Lenertz held 40 percent interest in JV-1. Both Lenertz and his brother granted JV-1 a 30-foot-wide easement across the drop lot to provide access to Highway 177 across the land southeast of the JV-1 lands.

A second joint venture (JV-2) formed to buy the property south of JV-1's holdings, to build another warehouse. Lenertz and the two joint ventures (JV-1 and JV-2) executed a “Joint and Mutual Easement Agreement whereby, inter alia, a 40-foot easement was established to provide JV-1 and JV-2 access to Highway 177 along the westernmost border of the Drop Lot property (hereinafter referred to as to the 40-foot easement).” This new 40-foot easement was positioned along the west border of the drop lot, beginning at Highway 177 to the west of the guard shack at the entrance to the drop lot, then running northwestwardly along that western boundary of the drop lot, and ending at the northwestern boundary of the property near the southwest corner of the warehouse on the JV-2 property.

On the same day that the agreement was made, JV-2 obtained a loan from Jackson Exchange Bank, secured by the property, and Lenertz entered into a lease-purchase option that would allow the other JV-2 partners to buy his interests.

The site began operations in late 1986, with trucks coming in from Highway 177 by the guard house, but then following no prescribed path across the drop lot to get to the warehouses at the north end of the site, varying their routes to go around wherever other trailers were parked. Often, trailers were parked within the 40-foot-wide easement, making it unusable.

In 1992, Jackson Exchange Bank was declared insolvent, and the Federal Deposit Insurance Corporation (FDIC) took over its holdings. JV-2 defaulted on its loan, and the FDIC bought it in 1994. Then JV-1 defaulted on its loan, too, and the FDIC bought its land in 1995. Lenertz continued to operate his other warehouse until August 1995.

In October 1995, the FDIC appraised the two joint venture holdings for a foreclosure auction, to be sold “as is,” “where is,” and “with all faults.” A survey showed only the 40-foot easement along the west edge of the drop lot to benefit the JV-1 and JV-2 lots, in accordance with the deeds. The easement was partly on graded surface and partly on sloping hillside, and the FDIC estimated a cost of $5,000 to improve the easement to make it usable.

Custom Warehouse, Inc., successfully bid on the JV-1 and JV-2 properties, based on the survey, paying a reduced price due to the easement problems. The FDIC had tried to acquire another easement from the Lenertz brothers, but an agreement was never reached (although the Lenertz brothers allowed the FDIC to access the warehouse by means other than the 40-foot easement).

In 1996, Lenertz bought all of his brother's interests in the drop lot, so that he held the entire tract in fee, under the name of FGL Holdings. Custom Warehouse tried to buy a new easement from Lenertz/FGL Holdings, who offered to sell one for $400,000. No deal was reached, but trucks were still allowed to drive in areas other than on the existing 40-foot easement. Lack of a suitable easement was the basis for Custom Warehouse's suit.

The first argument Custom Warehouse raised was for an easement by prescription across the drop lot. But there had not been a single location continuously used for the 10 years required by Missouri law. Further, the use of the drop lot had not been adverse. From 1986 to 1994 JV-1 and JV-2 had owned the warehouses, and Lenertz, as part owner, had permitted trucks to pass from one lot in which he had interest to another. If use begins permissively, it cannot become adverse. The location of a claimed prescriptive easement cannot be “based merely on speculation and conjecture.”2