Real property is defined as property that is fixed in nature, including land or buildings. It also includes anything growing on, affixed to, or built upon the land.
This may be a man-made building or a crop. It is property that does not move or is attached to the land. This is different from personal property, which may be moved or transferred physically.
Real property is also known as real estate or premises. It may also include anything that is permanently located within or under the land. This can include oils, gasses, or minerals found beneath the land.
Under real property laws, the individual who owns the land has what is often referred to as a bundle of rights associated with owning that land. This bundle of rights, also known as incidents of ownership, includes the rights to do the following with the land:
- Sell
- Lease
- Exclusively possess
- Encumber, or mortgage
- Dispose of by a will or other legal instrument
What Is Trespass?
A trespass occurs when an individual unlawfully enters the property of another without permission or proper authority. The right against trespassing includes the right to exclude other individuals from real property. The legal elements of trespass include when an individual:
- Enters private property
- Without authorization, or the landowner’s consent
- Interferes with the landowner’s right to exclusively possess their property
A trespass charge can lead to various legal consequences, including civil and criminal liability. A civil trespass includes similar elements to criminal trespass, but with some distinctions.
When an individual improperly enters another’s property, that is trespass. In addition, causing another individual to enter someone’s property can also be trespass.
Trespass in a civil lawsuit can include situations when an individual runs through a yard without permission or hits a baseball through a window. The goal of a civil suit is to collect a monetary amount for the damage caused to the property. Many states require that the individual filing the lawsuit, or the plaintiff, prove actual damages were caused to their property, although proving that the harm was intended is not required.
In order to prove criminal trespass, the prosecution must show that the defendant, or the accused unlawfully entered or remained on another individual’s property without permission and was aware that they did not have the owner’s permission to be on the property.
Intent is an essential element in a criminal trespass charge because accidental entry generally does not qualify as criminal trespass. This is the reason signs reading private property or no trespassing may be important evidence in proving the defendant’s guilt.
An individual can also be guilty of a trespass if they remain in a place they are specifically no longer allowed. In these cases, even though the entry may have been permissible, there can be a point at which that permission is withdrawn and an individual may be arrested or charged with trespass. For example, if an individual is at a retail store and is asked to leave but does not, they may be charged with trespass.
What Is an Easement?
An easement definition includes a legal right to use another’s real property for a specific purpose or a specific amount of time. An easement provides an individual with a legal right to pass through another individual’s land, so long as that usage is consistent with any specific easement restrictions.
The landowner retains title to the property even though an easement grants another individual a possessory interest in the land or part of the land for a specific purpose. An easement may be given to any individual, including neighbors, government agencies, or private parties.
An example of an easement would include a situation where a property owner allows usage of their private road or path for a neighbor’s navigation. Common examples of easements include easements for:
- Public utilities
- Power lines
- Cable television, although often underground
Easements are associated with real property and are, therefore, governed by real property law. In general, there are 3 types of easements, including:
- An easement in gross
- A prescriptive easement
- An easement appurtenant
State Variations: Real estate property laws, including those that govern easements, may vary significantly by state. These variations can affect the specific requirements for establishing an easement by necessity, how disputes can be resolved, and the remedies that may be available.
It is important to consult with a local property attorney to understand the applicable state laws for easement issues.
What Is an Easement in Gross?
An easement in gross is a legal right to use another individual’s land for as long as the owner possesses that land, or the holder of the easement passes away. An example of this type of easement includes an easement granted to a utility company so that company may access the utility lines on a landowner’s property.
What Is a Prescriptive Easement?
A prescriptive easement does not arise from obtaining specific permission from a landowner. A prescriptive easement is created when an individual uses a portion of the landowner’s property without the landowner’s permission. A prescriptive easement may arise when all the legal elements of adverse possession are met.
Adverse possession occurs when an individual uses another individual’s land for the period of time set by state law in a manner that is:
- Open
- Notorious
- Uninterrupted
- Hostile
- Adverse
If these elements are met, the adverse possessor may bring a quiet title proceeding. The goal of this proceeding is to obtain a declaration from the court that the individual has legal title to that property which is adversely possessed.
What Is an Easement Appurtenant?
An easement appurtenant usually involves two adjoining landowners. The property that is burdened by the necessary easement is referred to as a servient tenement.
The property that benefits from the necessary easement is known as the dominant tenement. An easement appurtenant may remain in effect, known as running with the land, even if the original property owner changes.
What Is an Easement by Necessity?
An easement by necessity is a common type of easement appurtenant. An easement by necessity is created by law, meaning it is not created by a specific promise or agreement between neighbors, but the law implies its existence to achieve just results.
An easement by necessity example may include a scenario where two individuals own separate parcels of land that adjoin each other in such a way that one of the parcels is landlocked. In other words, that parcel cannot be accessed except by traveling through the other parcel.
In these circumstances, the law creates an easement by necessity. This creates an easement placed upon the non-landlocked parcel, or servient tenement. It permits access to the property that is landlocked, or the dominant tenement.
Evidence/Documents: Evidence to support a claim that a parcel is landlocked may include surveys, deeds, historical ownership records, and maps. Affidavits from people with knowledge of the history of the property and access limitations may also be helpful.
Consulting with a property attorney can help determine the specific documentation that will be necessary in each case.
What Are the Elements of an Easement by Necessity?
Generally, a court will recognize an easement by necessity if the following essential elements of easements are met:
- At some time, both parcels of land were joined together or were owned by the same owner
- Subsequently, the property was divided, and the property owner sold a portion of the land
- Different individuals obtained ownership of different parcels
- Because of the division, one parcel was created that was accidentally landlocked
- The individual whose land is landlocked can only reasonably and practicably access their property by going through the other individual’s property
Process/Steps: In order to establish a claim for easement by necessity, a landowner will usually need to initiate a legal action, for example, a quiet title proceeding, in the correct court. This involves filing a complaint and presenting evidence that shows the necessary elements for the easement.
Consulting with a local property attorney is important for navigating the legal process and gathering the required documentation. An attorney can also provide advice on the specific procedures and requirements in the relevant jurisdiction.
Can an Easement by Necessity Be Terminated?
Generally, that law does not favor an involuntary placement of an encumbrance on an individual’s private property for longer than necessary. Because of this, an easement by necessity may be terminated when the necessity for crossing an individual’s land no longer exists.
This necessity may cease to exist when certain situations occur, such as a new road or path is built that creates access to the previously landlocked parcel.
What Are Some Considerations Related to an Easement by Necessity?
Timelines: In general, legal claims have statutes of limitations, which are time limits within which lawsuits have to be filed. These timeframes can vary depending on the jurisdiction and the specific circumstances of the case.
It is important to consult with a lawyer to determine the applicable deadlines in a specific situation.
Costs/Fees: Legal proceedings typically involve expenses such as attorneys’ fees, court filing fees, and the cost of obtaining any necessary expert opinions or documentation. These costs may vary significantly depending on the jurisdiction and the complexity of the case.
Consulting with a local attorney can provide a clearer understanding of the potential financial implications.
Risks/Penalties: If an individual violates an easement by necessity, either by blocking the access route or by misusing the easement, they may face severe consequences, both legal and financial. For example, if they block a fence or building that obstructs the easement, the court may order an injunction that forces them to remove it at their own expense. They may also have to pay monetary damages to the landlocked property owner for the prevention of using, accessing, or developing their property.
The Importance of Hiring a Lawyer: Navigating the legal process of establishing or challenging an easement by necessity may be complicated. There are tasks that may require legal assistance, such as drafting legal documents, understanding the relevant case law, and presenting evidence in court to support a claim.
An attorney will provide guidance and representation to ensure the best possible outcome in an easement by necessity case.
Should I Seek Legal Counsel Regarding an Easement by Necessity?
Yes, if you are involved in an easement by necessity situation, it is important to seek help from an experienced property lawyer. A lawyer can review your case whether the easement burdens your land or if an easement by necessity needs to be created in order to access your land. They can advise you on the best path forward and represent you during any legal proceedings, if necessary.
