EASEMENTSRIGHTS OF WAY AND

ENCUMBRANCES IN LAND

TONY NETTLEMANInstructor

www.cnettleman.net

charles.nettleman@gmail.com

©

COURSE OBJECTIVES• Distinguish between the different types of easements, explain their similarities and differences, and give examples of each

• Correctly use easement terminology to describe each element of an easement

• Explain the differences between appurtenant and in-gross, express and implied, and positive and negative easements

DEFINITIONS OF EASEMENTS

ACCORDING TO WEBSTER……….

• An act or means of easing or relieving (as from discomfort)

• An interest in land owned by another that entitles its holder to a specific limited use or enjoyment

AREAS OF CONCERN

POSSESSION (Survey or facts)

TITLE/INTERES

T (Legal)

AREA OF CONFLICT

DESCRIPTION/

BOUNDARY (Original Survey,

Retracement)

HISTORY AND BACKGROUND OF EASEMENTS

KUDURRU Boundary Stone, Babylonia

Circa 1100 BC

• Description is inscribed -location, bounds and area

• Transfer is documented• Surveyor is named• Property is monumented• Curse is included!

SUBSURFACE ESTATE

• Mineral rights• Gravel rights• Water rights• Oil and gas rights

REAL PROPERTY RIGHTS

FEE SIMPLE ABSOLUTE• Conveys an indefeasible fee (most rights with least limitation)• Deed terms: "to A and his heirs” or "to A" or "to A in fee simple”

LETS TALK EASEMENT “TERMS”

• APPURTENANT vs. IN-GROSS

• EXCLUSIVE vs. NON EXCLUSIVE 

• AFFIRMATIVE vs. NEGATIVE

• EXPRESS vs. IMPLIED

• SPECIFIC vs. GENERAL

• DOMINANT vs. SERVIENT

EXCLUSIVE• Only the person specified in the easement document may use the easement

• “An exclusive easement, for high voltage power lines, to Florida Power & Light”

CREATION OF EASEMENT BY RESERVATION OR

EXCEPTION• Grantor “reserves” easement for himself or 3rd party when selling property

• Less common

REYES V. PEREZ(UPDATE)

EGRESS INGRESS

PROFITS

• Non-possessory interest allowing owner to remove something from land (water, minerals, etc.)

• Profit in-gross is freely assignable

TRIAL DIAGRAM

BEFORE (1981)

SR 535

AREA OF FUTURECASEY MOUNTAIN (GRAND CYPRESS)

DIRT ROADWAYTHROUGH GROVES

USED BY ENOSAND PREDECESSOR