How to draft easements / Dean N Alterman.

Format:

Book

Author/Creator:

Alterman, Dean N., author.

Language:

English

Subjects (All):

Servitudes--United States.

Servitudes.

Physical Description:

1 online resource (147 pages)

Place of Publication:

Chicago, IL : American Bar Association, [2021]

Summary:

What is an easement? The classical definition of an easement is "a nonpossessory interest in the land of another that entitles the holder to use the land for a particular purpose." Most easement agreements create relationships that the parties want to last indefinitely, i.e., forever, or until the easement itself becomes obsolete a century or two later. Keep in mind when you draft an easement agreement that a hundred years later the owners of the properties tied to the agreement may dispute what it means, when the original parties will not be available to explain what they meant.Table of Contents* What Is an Easement?* Basic Easement Theory* Easements in Gross* General Drafting Principles for Appurtenant Easements* Driveway and Access Easements* Appurtenant Utility Easements* Party Walls and Fences* View Easements* Encroachment Easements* Relocation Rights and Wrongs* Ten Ways to Misdraft Your Easement Agreement

Contents:

Intro

Title Page

Copyright Page

Contents

About the Author

Introduction

1 What Is an Easement?

1.1 The Classical Definition

1.2 Easements and Licenses

1.3 Easements and Profits à Prendre

1.4 Easements Expand Beyond the Classical Definition

1.5 Easement Agreements Can Last a Very Long Time

2 Basic Easement Theory

2.1 A Note on Terminology

2.2 Easements in Gross Benefit a User, Not a Property

2.3 Appurtenant Easements Benefit a Particular Property or Small Group of Properties

2.4 Easements That Might Go Either Way

2.5 Easements Can Last Forever

2.5.1 Termination by Agreement

2.5.2 Termination by Condemnation

2.5.3 Termination by Abandonment

2.5.4 Termination by Adverse Possession

2.5.5 Termination by Merger

2.5.6 Termination by Destruction

3 Easements in Gross: Overhead and Underground Utilities

Conservation Easements

3.1 Easements in Gross for Utility Lines

3.1.1 Easements for Overhead Lines

3.1.1.1 Specify the Location of the Easement Area

3.1.1.2 Describe the Improvements That the Grantee May Build

3.1.1.3 Protect the Grantor's Right to Use the Surface

3.1.1.4 What Is the Grantee's Right of Access?

3.2 Let's Dig into Underground Utility Lines

3.2.1 How Low Must the Grantee Go?

3.2.2 What Exactly Is the Easement Area?

3.2.3 Surface Tension: What Must the Grantee Restore?

3.3 Conservation Easements for the General Good

3.3.1 Two Bodies of Law Control Conservation Easements

3.3.1.1 State Laws and the Uniform Conservation Easement Act

3.3.1.2 The Internal Revenue Code and Conservation Easements

3.3.1.3 Three of the Internal Revenue Service's Requirements Are Easy to Meet

3.3.1.4 A Tax Trap Lurks for the Unwary in the Fourth Requirement

3.3.1.5 The Fifth Requirement, Valuation, Is Sometimes Abused.

4 General Drafting Principles for Appurtenant Easements

4.1 Identify the Burdened Property

4.2 Identify the Portion of the Burdened Property That Is Actually Affected

4.3 Identify the Benefited Property

4.4 Limitations on Use

4.4.1 Describe What Happens if the Grantee Tract Is Partitioned

4.4.2 Limit the Intensity of Use of the Easement Area

4.4.3 Limit the Land Uses That the Easement Area Can Serve

4.4.4 Limit the Dimensions and Capacity of Roads and Utilities

4.4.5 Pass-Through Rights

4.5 Repairs and Maintenance

4.6 Change of Grade

4.7 Illustrating the Easement: A Word Is Worth Only One Thousandth of a Picture

5 Driveway and Access Easements

5.1 Where Is the Easement?

5.2 What Property Does it Benefit?

5.3 How May the Grantee Use the Easement Area?

5.3.1 A Driveway Is Not Only a Driveway

5.3.2 How Intense May the Use Be?

5.4 Specify Standards for the Driveway

5.5 Gates

5.6 Access for Everyone: Special Issues in the Multiparty Agreement

5.6.1 Allocating Maintenance Cost

5.6.2 Recording the Easement Effectively

5.6.3 Disclaim a Dedication to the Public

6 Appurtenant Utility Easements

6.1 Differences Between Utility Easements in Gross and Appurtenant Utility Easements

6.2 If Your Easement Is Appurtenant, Identify It as Appurtenant

6.3 Can the Burdened Property Connect to the Utility Line?

7 Party Walls

7.1 History of Party Walls

7.1.1 Party Wall Litigation

7.1.2 Legislation

7.2 Reviewing a Party Wall Agreement

7.3 Drafting a Party Wall Agreement

7.3.1 Begin With the Recitals

7.3.2 Grant the Reciprocal Easements

7.3.3 To Add or Not to Add? That Is the First Question

7.3.4 Repairs and Maintenance

7.3.5 Demolition and Reconstruction

8 View Easements

8.1 General Principles of View Easements

8.2 Identify the View to Be Protected.

8.3 Defining the Easement Area

8.4 Are You Prohibiting All Structures or Only Those Above a Certain Height?

8.5 Granting the View Easement

8.6 What Remedies Will the Grantee Have If the Grantor Violates the Easement?

9 Encroachment Easements

9.1 Encroachment Easements for Fence Lines

9.2 Easements for Encroaching Buildings

9.3 Demolition and Rebuilding

10 Relocation Rights and Wrongs

10.1 The Restatement (Third) of Property

10.2 Drafting around the Restatement and the Uniform Easement Relocation Act

10.3 Can the Dominant Owner Relocate the Easement?

10.4 A Special Kind of Relocation: Relocation by Adverse Possession

11 Ten Ways to Misdraft Your Easement Agreement

11.1 First Error: Don't Define Your Terms, and Don't Use the Terms You Have Defined

11.2 Second Error: Don't Identify the Benefited Property

11.3 Third Error: Don't Identify the Actual Servient Property

11.4 Fourth Error: Don't Describe the Extent and Intensity of the Use

11.4.1 Don't Protect the Burdened Owner by Limiting the Easement Holder

11.4.2 Don't Protect the Easement Holder by Allowing the Intensity of the Use to Increase as the Easement Holder's Needs Change

11.5 Fifth Error: Don't Describe the Allowed Use in Exact Language

11.6 Sixth Error: Don't Set Standards for Roads and Utilities

11.7 Seventh Error: Don't Attach a Map of the Properties and the Easement Area

11.8 Eighth Error: Don't Deal With Development and Relocation for the Grantor

11.9 Ninth Error: Don't Deal With Relocation for the Grantee

11.10 Tenth Error: Don't Ask How Your Client Is Going to Use the Benefited Property

Conclusion

Appendix

Access Easement Agreement

Easement Maintenance Agreement

Reciprocal Easement Agreement

Utility Easement Agreement

View Easement Agreement

Landscaping Easement Agreement

Acknowledgments.

Index

Back Cover.

Notes:

Includes index.

Description based on print version record.

Other Format:

Print version: Alterman, Dean N How to Draft Easements

ISBN:

1-64105-973-7