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Basics of Easements & Encroachments | Real Estate Exam Prep Videos - YouTube
Channel: The Real Estate Classroom
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in today's video we're going to discuss
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easements and encroachments how are they
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created what they are and how do you get
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out of them all of that in this video
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[Music]
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everyone my name is Paul for Chesky and
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welcome to the real estate classroom
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YouTube channel in today's video we're
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gonna discuss what easements and
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encroachments are how they are created
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and how we get rid of them once there's
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one that's been established but there
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are a couple of things that we have to
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understand before we get into the
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specific types of easements let's take a
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look at them number one they are created
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by people they are created by operation
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of law and they are created by use now
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depending on which one of those create
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the easement determines what type of
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easement it is two other things to
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remember when we're talking about
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easements number one they pass with
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title meaning they pass with owners so
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the new owners of that property they are
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bound by the terms and the conditions of
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those easements and the other part is
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for for an easement to be enforceable
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for it to be valid it must be in writing
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according to the statute of frauds very
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important to remember for your real
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estate licensing exam alright so let's
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take a look at what an easement is well
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an easement is simply the right of one
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person to use the land of another the
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key here is the right to use there's no
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right to occupy and there's no right of
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ownership it's only a right to use and
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again how has an easement created it was
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done by two people maybe mutual consent
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by an operation of law or by continuous
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use now a couple of key terms that you
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also need to know is what we call
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ingress and egress ingress and egress is
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just a fancy way of saying saying a
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person has a right to enter into leave
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remember they don't have a right to
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occupy they can't enter and stay it's
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just a right of ingress and egress okay
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the first concept I
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want to discuss here is easement a
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pertinent now easement appurtenant has
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two key players here very important to
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understand it's called dominant tenant
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and servant tenant so let me illustrate
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on the board what I'm talking about here
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so let's say that we have two property
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owners one is a dominant tenant and one
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is a servant tenant so this owner is the
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dominant tenant this is the servant
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tenant now what that basically means is
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the dominant tenant has the rights over
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the Servian tenant it literally means
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the dominant tenant has the white the
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right to walk across the servant tenants
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property that's easement appurtenant the
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dominant tenant has the right over the
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serviette the servant tenant serves the
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dominant tenant now remember there's no
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ownership here only a right to use the
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right of ingress and egress the second
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type of easement I want to discuss is
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easement in gross now an easement in
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gross means there is no dominant tenant
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we we see this a lot with utility
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easements and here's what I mean let's
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say we have a piece of property here and
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the property owner is the servant tenant
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remember there is no dominant tenant
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because the utility company wants to put
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a utility line across that person's
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property the key here is there is no
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other piece of property for a dominant
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tenant to ingress and egress but there
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is a need for the utility company to put
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in a power line here all right again
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ownership or title does not pass it's
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only a right to use but the key with
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easement and gross is there is no
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dominant tenant now the next type of
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easement I want to discuss is what's
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called an easement of necessity and it
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sounds a lot like what it means there is
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a necessary reason for the easement
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itself so let's take a look here let's
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say that we have a property owner and
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this is a highway
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and there's no way for this property
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owner right here to access the real
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world all right this is what we call a
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landlocked property a landlocked
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property so this property owner a is
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going to get an easement to go across
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B's property so he or she has access to
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the highway easement of necessity now
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very important that you remember with an
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easement of set and necessity there it
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is only established by a court order or
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mutual consent so a and B could get
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together and say yeah we're going to
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agree to this easement or if B disagrees
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then a would actually have to go to
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court and get a court order to force the
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ease of it now understand a does not own
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this driveway here it's only a right to
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use to go to and from and it would
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actually be trespassing if a cruised
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their vehicle along the easement and
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stopped right there to watch the sunset
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for example that would actually be
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trespassing an easement only allows for
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the right of ingress and egress that is
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easement of necessity now the last type
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of easement I want to discuss is what's
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called an easement by prescription this
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is created by use all right easement by
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prescription is only created by use so
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let's take a look at what I'm talking
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about here so let's say that we have to
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property owners here and they are side
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by side and we have a highway here in a
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highway here all right Sally owns this
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property and Tom owns this one and here
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is town Tom works in town so what Tom
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does every single day is instead of when
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he comes home from work to and from work
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instead of going all the way around to
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his driveway what Tom does is there is a
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little access road right here
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so tom goes to work going across Sally's
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property and that when he comes home
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from work he uses that access road to
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get
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alright that is what we call easement by
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prescription but for easement by
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prescription to be valid there are some
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key legal essential elements that must
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be met number one
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Tom wood must have must have done this
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for a prescribed statutory period of
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time as determined by that specific
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state law number two it must be open and
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notorious and in a hostile manner
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meaning it has to be visible and actual
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and against the wishes or hostile to
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Sally meaning Tom didn't ask
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Sally's permission to do it he just did
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it
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alright so Sally would be recommended to
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go and put a do not trespass or a gate
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up or something that stops that
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continuous use for that prescribed
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statutory period of time but if Sally
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didn't do anything to stop Tom from
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doing that after that prescribed
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statutory period of time was up then Tom
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could actually go into court and say hey
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listen I met all the essential elements
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and there is a prescription easement
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that has been that has been created
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easement by prescription is through
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continuous use quite frankly that's when
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if you go out into the countryside you
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see a lot of no trespassing keep out
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signs and one of the reasons that's done
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is certainly to keep people out but to
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prevent anybody from creating those
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easements that is an affirmative defense
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that the property owner can raise by
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having those keep out or no trespassing
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signs now now the last concept I want to
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discuss is what's an encroachment now an
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encroachment is different than an
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easement an easement is a right to use
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it's the right of one person to use
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another person's property an
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encroachment is actually very common in
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the real estate transactional world so
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let me give you an example what an
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approach Minh is so let's say that we
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have somebody's property line we have
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Tom and we have Sally but there's a
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fence and the fence belongs to Tom and
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it encroaches on Sally's property by
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three feet
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that fence is what we call an
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encroachment another thing that's very
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common that we see is overhangs from
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buildings that's right on the property
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line and it overhangs into the next
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person's property
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those are encroachments so an
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encroachment is not a right to use
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there's no easement developed it's just
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somebody's property is encroaching on
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somebody else's and in fact sally has to
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be careful because depending on a
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certain estate law in the state that
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this property is located in if this
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fence is here long enough
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Tom could actually claim adverse
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possession which has actually been done
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it's it's not too uncommon so it's very
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important that when we're putting up
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fences that we want to make sure that we
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do a survey so we know where that
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property line is to make sure that the
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fence isn't encroaching on our property
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because there can be long-term
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consequences of that all right so how do
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we get rid of an encroachment well Sally
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could simply tell Tom hey Tom move your
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move your fence or Sally could say
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listen I know that it's three-foot onto
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my property so when the fence needs to
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be replaced please remove you know move
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it three feet over onto your property
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those are the common Corrections that we
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see last thing I want to talk about in
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this video is how do we release or get
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rid of easements and there are five ways
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that we can terminate an easement number
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one is mutual consent between the two
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property owners they simply agree to
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terminate the easement the second way is
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through a merger meaning the merger of
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the two properties certainly if the two
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properties merge there's no need for the
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easement anymore court order a judge can
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terminate any contract or any easement
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number four is an abandonment so one of
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the parties particularly the dominant
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tenant abandons the their right to use
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that easement and the last one is the
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need no longer exists such as an
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easement by necessity that's all I got
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on easements and encroachments don't go
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anywhere if you still got a study right
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a great video that will help you with
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your licensing exam if you have not
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subscribed to our channel click on that
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little circle right there out appreciate
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it
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alright we'll see you in the next video
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