EASEMENTS Chapter 4 - Wallace W. Lien

1 Chapter 4 EASEMENTSWALLACE W. LIENW allace W. Lien, , OregonTable of .. Estate .. in Gross .. Easement .. Express or Grant .. Considerations .. of the Easement .. of the Easement .. Maintenance and Implied by Prescription .. EASEMENTS .. of .. by of Servient Estate to Bona Fide Purchaser for Value, without Use Case v. Crook County, 172 Or 44 (2001)..4-15 Foster Auto Parts, Inc. v City of Portland, __ Or App__ (12/5/00)..4-16 Hoffman v. Freeman Land and Timber, LLC, 329 Or 554 (1999).. 4-16 Tyska v. Prest, 163 Or App 219 (1999).. 4-16 State ex re.

2 Dept. of Transportation v Hanson, 162 Or App 38 (1999) 4-17 Baylink v. Rees, 159 Or App 310 (1999)..4-18 Watson v. Banducci, 158 Or App 223 (1999)..4 ..4-14 Itemized List of Forms .. for Roadway Easement and Road Maintenance for Drainfield Repair Area .. Easement .. Easement (Light, Air and View)..4-39 List of Statutes .. author would like to deeply thank E. Shannon Johnson, of Lien and Johnson, and KevinE. Mayne and Mary Kim Wood, of Wallace W. Lien for their generous contributions to theresearch and preparation of these iiiNOTES4 1I. INTRODUCTIONP reparation of an easement is one of the more simple services an attorney can provide,or it can become a difficult and complicated project.

3 Many times, a simple form with the barenecessities works for the client. However, there are hidden traps for the attorney who blindlychooses a simple fill-in-the-blank form for every article will primarily address issues involving express, implied and prescriptiveeasements and maintenance agreements. It will also touch briefly on the statutory way ofnecessity (ORS ). It will conclude with a summary of recent easement cases and somebasic easement forms which may be adapted for your own EstateThe property that uses and is benefitted by the EstateThe property that is encumbered with the easement or serves the dominant property through which the easement easement is an interest in the land of another that entitles the owner of the interestto a limited use of another s AppurtenantAn easement that directly benefits a dominant property and that runs with land.

4 If nototherwise agreed by the parties, such an easement is transferred with the dominant property,even if not mentioned in the instrument of in GrossAn easement that directly benefits an individual or entity and is not tied to a specificbeneficial tract. There is a servient estate but no dominant estate. Transfer is not automatic and inmost cases limited to the original holder. Utility EASEMENTS that run through another s propertywithout benefitting a specific dominant estate are an example of an Easement in EasementAn easement that benefits exclusively the dominant estate and no EasementAn easement that may benefit other properties.

5 In other words, a servient property ownermay use the easement or grant another party an easement over the same Affirmative Easement An easement that allows the owner of the easement to conduct certain activities on theservient Negative EasementAn easement that prevents the owner of the servient estate from using his or her property ina certain manner that is otherwise lawful, because that prohibited use will adversely affect thedominant estate. Scenic and solar EASEMENTS that prohibit one tract of land from building in a certainplace, or building a certain height fall into this EasementIs an easement that is imposed by a court, as a matter of law, by inferring the parties to a realproperty transaction intended that an easement be created, although they did not express it in anyof the transactional documents.

6 The rights to the easement arise out of the existence of certain factsthat can be implied from the transaction. that conveys a personal privilege to do some act on the land of another. Isdistinguished from an easement in that it is not an interest in land, and has none of the benefits orrights of an CREATING EXPRESS or GrantA property owner can create an express easement by grant or reservation. A grant of aneasement occurs when a property owner gives an easement to a dominant estate. For example, if acommon owner of two parcels sells the parcel away from the public road and retains the front parcelthat has access, such owner would grant an easement for access to the buyer of the rear 3 Conversely, if the same owner was selling the front parcel and keeping the rear parcel, that ownerwould want to reserve an easement for himself or herself for access over the front parcel.

7 A grant or reservation can be by separate instrument or within a deed. Even if a sale ofproperty occurs concurrently with granting of the easement, it is preferable to have the easement setforth by separate instrument rather than in the deed. There are three reasons to support this , any discussion regarding the scope of use or other details does not fit neatly into the deed, anda practitioner is constrained in his or her ability to set forth the detail that may be necessary. Second,though acceptance of an easement by the dominant estate would imply acceptance of the terms inmost cases, it is preferable to see both parties signatures actually on the document, and a deed isa one-party document.

8 A separate document is particularly important when the dominant estateowner is making express promises such as maintenance requirements. Third, the easement is muchless likely to be missed by a title examiner when it is a separate document clearly providing thenames of both the grantor, grantee, and descriptions of the dominant estate, the servient estate, andthe easement reason for separating a deed from an easement is to clarify the difference betweenthe conveyance of fee ownership (the deed) versus a nonpossessory right of use (the easement). Forexample, the grant of a right-of-way may be ambiguous, even though in most cases it is almostuniversally held to be a grant of an easement rather than fee title.

9 Cappelli v. Justice, 262 Or 120,496 P2d 209 (1972). The language used should be clear as to what type of interest is ConsiderationsSome situations do not require the use of a complex and detailed easement. If the situationinvolves an urban-sized lot that is being partitioned for residential use and the back portion of thelot needs an easement to get to the public street, it is possible that a simple form will be is particularly true if both the dominant and servient parcels are now so small that furtherpartitioning is not possible and the likelihood that any type of change of use or frequency of use willoccur is quite remote.

10 A simple ingress and egress form may is not unusual for partitioning plats and subdivision plats to contain the easement rightsdirectly on the face of the plat. Oftentimes this easement language is drafted by the surveyor orengineer who created the plat. Great care should be taken to review this language if you areinvolved in the platting process, and to provide drafting instructions, and to make sure thatsubsequent conveyances make reference to the existence of platted EASEMENTS . Similarly, PUDD eclarations, and subdivision CC&R s might contain easement language, and care should be taken4 4in making sure that all the formalities of easement creation are followed even though the easementmight be buried in a different the subject properties are large, nonresidential, or if there is any concern regardingsubsequent use, then more inquiry by the attorney is critical.