Easements

News & Analysis as of

"Rails to Trails" or "Rails to Trespass": Supreme Court Speaks on the Abandonment of Certain Railroad Rights of Way

Last month, the Supreme Court of the United States (please, there is no such thing as the "United States Supreme Court") decided a very interesting case about easements. "Easements?", you ask. Yes, easements. We use them...more

Real Estate Tip: Hire Your Own Surveyor to Avoid a Close Call

A recent New Hampshire real estate closing was stalled at the 11th hour when the parties realized that a survey plan did not show the location of a no-build area created by private restriction in the chain of title. Since...more

Appellate Court Notes - Week ending March 24

SC18996 - Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. This case arrived from a divided Appellate Court where some jurist opined that the plaintiff’s attorney malpractice claims sounded solely in tort,...more

New California Court of Appeal Opinion Holds That Supreme Court's Seminal Nollan and Dolan Opinions do Not Apply Where a Permit...

The well-known "nexus" and "rough proportionality" tests from the United States Supreme Court's opinions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) do not...more

Continuing Uncertainty About the Exercise of Eminent Domain in Pennsylvania

The proliferation of unconventional natural gas production in the last few years has been an economic and energy boom to Pennsylvania and other key stakeholders, like local municipalities, exploration and production firms,...more

NYSDEC Announces Streamlined Procedures for Environmental Easements

On February 20, 2014, the New York State Department of Environmental Conservation (“NYSDEC”) announced streamlined procedures for environmental easements. There has been a significant push from the regulated community for...more

Owning Property Subject To An Easement May Include an Obligation to Sign Legal Documents for the Easement Holder

Court Imposed a “Rule of Reasonableness and Mutual Accommodation” on Neighboring Property Owners - Owning real property that is subject to an easement may include an obligation to sign land use or building permit...more

Weekly Law Resume - January 2014: Conduct As Interference With Easement

Flora Dolnikov v. Dikran Ekizian - Court Of Appeal, Second District (December 19, 2013) - This case dealt with an easement for ingress and egress to undeveloped lots in the Hollywood Hills. In 1942, defendants’...more

Requirement That Landowners Give Aircraft Overflight Easement Before Obtaining Building Permit Did Not Constitute a Taking of...

Landowners assert a requirement that they provide an aircraft overflight easement before obtaining a building permit constitutes a taking of their property without just compensation. The court of appeal held that the...more

Title Troubles In Texas, North Dakota And Montana: Right Of Way v. Fee Conveyance

If you examine titles or read title opinions, this post is for you. I was recently examining instruments for an East Texas title opinion when I came across an instrument that, at first glance, appeared to be an...more

Real Estate Tip – Part 2: Planning Board Demands: When Are They Unconstitutional?

Koontz v. St. John’s River Water Management District 133 S.Ct. 2586 (2013) - In our last real estate tip, we saw how the U.S. Supreme Court under the Nollan and Dolan cases test conditions of approval under the 5th...more

Requiring Landowners To Dedicate An "Overflight" Easement Is Not A Taking, Even When All An Owner Seeks Is A Minor Building Permit

The United States Supreme Court decisions in Nollan and Dolan provide landowners with a useful tool for seeking compensation when government agencies use their land use authority to exact valuable property rights and other...more

Locating Utilities – When Municipal Consent is Not Enough

Over the last decade, there have been numerous class actions regarding telecommunication companies’ use of railroad easements. In many of those cases, the telecommunication companies obtained permission from the railroad...more

NEW CASE ALERT (Easement Law): Refusing To Consent To Development Plans May Trigger Tort Liability For Interference With Easement

If an easement owner is required to obtain governmental approval in order to develop that owner’s property, and the neighboring property owner refuses to consent to the development (e.g. refusing to execute consent for a...more

The Benefit/Burden Principle - How a Buyer of Land Could Be Required to Perform Positive Covenants Without Having Expressly Agreed...

The recent case of Goodman and others v Elwood (2013) in the Court of Appeal shows that, where a buyer acquires the benefit of a right over neighbouring land, the buyer must also take on the obligations which relate to that...more

NEW CASE ALERT (Easement Law): The Area Of An Express Easement May Be Limited By Its Historical Use

If an express easement does not specifically identify the area of use, then the scope of permitted use may be limited to the historical use of the easement. (Rye v. Tahoe Truckee Sierra Disposal Company, Inc., 2013 WL 6578784...more

And You Thought Ending Flood Insurance Subsidies Would Be Difficult? Try Persuading a Politician to Support “Managed Coastal...

Earlier today, I posted about the political difficulties inherent in reforming flood insurance programs to avoid subsidizing those who choose to live in coastal areas subject to flooding. When even Democratic legislators...more

Eminent Domain approved for Agoura Hills Street Widening

Last week, the Agoura Hills City Council approved acquiring 14 properties through eminent domain for its Augora Road Widening and Canwood Street Improvement Project, as reported by The Acorn. The purpose of the project is to...more

Of Boats, Dining, and Zoning: Virginia Supreme Court Decides Old Dominion Boat Club v. Alexandria City Council

On October 31, 2013, the Virginia Supreme Court decided Old Dominion Boat Club v. Alexandria City Council, et al. The case involved ongoing litigation between the Old Dominion Boat Club (ODBC), the City of Alexandria, and...more

Real Property, Financial Services & Title Insurance Case Law Update: Week Ending September 27, 2013

I. FLORIDA STATE CASES - ILAN NIEUCHOWICZ - Foreclosure/Standing: certifying to Florida Supreme Court as question of great public importance whether a plaintiff in a foreclosure action may cure inability to prove...more

Property Encumbrances to Avoid

Quality is important when investing large amounts of capital into a piece of real estate. However, while savvy buyers closely examine the physical aspects of a property, certain nontangible defects may escape notice. These...more

Use of Agricultural Conservation Easements Must Be Considered In Mitigating Loss of Prime Farmland To Development

A sand and gravel quarry was proposed for a site containing 45 acres of prime farmland. The Environmental Impact Report (“EIR”) analyzing the development concluded that obtaining perpetual agricultural conservation easements...more

Who Pays for Maintenance When an Easement Is Jointly Owned?

When you purchased your house a few years ago, you knew that an easement on the property allowed the neighbors to use a back alley on your lot to access their property. You and the neighbors actually are co-owners of the...more

Real Estate Tip – How to Resolve Easement Disputes

Declarations of easements covenants and restrictions and reciprocal easement agreements are common tools used by neighboring businesses to define the use and maintenance of shared spaces – from parking lots and roofline...more

Understanding Property Easements in California

What is an easement? Simply put, an easement is a right to use land that belongs to someone else. In California, easements are considered a critical component of property law....more

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