Welcome to Understanding Easements in Pennsylvania Understanding Easements

Welcome to Understanding Easements in Pennsylvania

Understanding Easements Pennsylvania Bar Institute Neil Andrew Stein, Esquire Kaplin, Stewart, Meloff, Reiter & Stein, PC Blue Bell, Pennsylvania 2

Property Rights “Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race” William Howard Taft (1857– 1930), U. S. President. Popular Government, ch. 3 (1913). 3

Easement Defined “Intangible or non-possessory right to use another’s land for a precise and definite purpose not inconsistent with the other’s simultaneous right to use the same property, or, in our language an incorporeal hereditament. ” Black's Law Dictionary, 8 th ed. (2004), at 1108. 4

Compare n n License is a mere personal or revocable privilege, which conveys no interest or estate. Baldwin v. Taylor, 31 A. 250 (Pa. 1895). A license is often created orally, is revocable at will and is automatically revoked by sale of burdened property. Restrictive covenants in deeds are valid and enforceable but strictly construed against the party seeking enforcement. Gey v. Beck and Bindas, 568 A. 2 d 672, 675 (Pa. Super. 1990); Morean v. Duca, 430 A. 2 d 988, 990 (Pa. Super. 1981). 5

Easement Classes n n “Appurtenant” is a liberty, privilege or advantage which the owner of one piece of land has in the land of another. “In gross” is personal right in real estate of another because it is not appurtenant to land owned by the grantee. 6

Easements Appurtenant n Runs with the Land n n Dominant Tenement n n “created for and beneficial to” the owner of adjoining land transferred with the property the land that obtains the benefits of the easement. Servient Tenement n the land that gives the easement for the benefit of another. 7

Creation by Agreement • Pennsylvania Statute of Frauds generally requires that any transfer of an interest in real estate, including the grant of an easement, is not binding unless reduced to a signed writing. • Are easements always in writing? 8

Restrictions n n n Limit use or occupancy of land n a. Covenants - promises to do or not to do certain things on property. n b. Conditions - promises made under penalty of title returning to the grantor. n c. Governmental Restrictions - limitations to the use or occupancy of land. Public restrictions such as zoning. Private Restrictions - made by the present or previous land owners and are created only for their benefit. 9

Easements in Gross n Created for the benefit of others who do not own adjoining or attached lands. It does not benefit adjoining landowner. n May have one or several servient tenements. n n Example - a utility company obtains the right to run power lines across your land. Un-located or “Blanket” Easement means an owner gives the right to cross his property and does not limit how or where. 10

Utility Easements n n Is it a right-of-way or an easement? Above-ground, underground or both? Can I get paid or am I stuck with eminent domain? Can I change the form document? 11

Implied & Prescriptive Easements n Implied by Law, e. g. , a “landlocked” parcel n Prescriptive: n Continuous n Notorious n Adverse n Period of twenty-one (21) years n Boyd v. Teeple, 331 A. 2 d 433 (Pa. 1975) 13

Conservation Easements The Pennsylvania Recreation Use of Land Water Act (68 Pa. Stat. Ann. § 477 -1 et seq. ) protects landowners, reducing the standard of care to easement users if land is available free of charge to the public for recreational purposes. 14

“Scope” of Easements n n n Specific Purpose? How Expansive? Duration? Transfer? Termination? 15

“Advances In Technology” n n “Horse and buggy traffic slowly gave way to …automobile traffic … eventually automated farm equipment…. easement may be used for all ordinary purposes in a reasonable manner …. ” Leistner v. Borough of Franklin Park, 771 A. 2 d 69 (Pa. Cmwlth. 2001) 16

Drafting Tips n n n Have All Information Know “Big Picture” Are Parties Sophisticated? Concise But Complete. Side Issues: n n n Taxation Subordination Ownership-Title 17

Drafting Traps n n n Is the client always right? Did you check the property description? Whoops – I thought you were recording? What mortgage? I need title insurance? For what? For whom? 18

Easement Description n n Courts are relatively liberal – but don’t count on it! Metes and bounds or recorded survey is best Other description or diagram will work Actual area of use may control in some circumstances 19

Clouds on Title (How Do I Get Rid of this Stuff? ) n n Encumbrances Priorities of Encumbrances Subordination Easements that no longer serve a purpose 20

Questions & Answers Thank you! Neil Andrew Stein, Esquire 21