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CHAPTER 1
INTRODUCTION
Easements are not real property, but they are treated like real property and are often confused by the uninitiated, who believe they are real property, when they are in fact not. Therein lies a major source of confusion among the general public, which, over time, has led to an astounding number of problems and controversies. To understand the nature and impact of easements first requires at least a basic understanding of real property law and ownership, in many cases much more than just a basic grasp of the subject.
The other common source of confusion is that an easement, being a right, or an interest, is invisible. Some characteristics of the ultimate result of an easement, such as pavement in the case of a road, for instance, may be visible, but the easement itself cannot be seen. Many would look at these characteristics and conclude that that is the easement, when in reality, it is the result of the easement or evidence of the location of the easement.
RIGHTS AND INTERESTS IN LAND; TRANSFER OF OWNERSHIP
Ownership in General
Land ownership. When something is owned, it is generally thought that someone has title to it, or in it. Title may be in several forms, however. Title, by definition, can be regarded as the right to or ownership of property. The word is used to designate the means by which an owner of lands has the just possession of his property, the legal evidence of his ownership, or the means by which his right to the property has accrued.1
A fee-simple estate is the highest and greatest estate in land that one can obtain. Those who possess a fee-simple or fee simple absolute estate are, for all purposes, the owners of the land. The words fee-simple absolute in reality are not a single term; each distinct word carries a meaning that explains the entire term. Fee denotes that the estate is one that can be inherited or devised by a will. Simple denotes that the estate is not a fee tail estate, wherein the estate must be inherited by a specific individual. Absolute means that there are no conditions or limitations so far as time is concerned on the estate, and this estate may continue forever (not like a fee or an estate that may be determinable upon the happening of an event).2
Fee tail, or an estate tail, is an early English type of estate, which in all probability was borrowed from the Romans. It is a true freehold estate limited by the grantor to the heirs of the grantee's body or to a special class of individuals, either male or female (e.g., the eldest, the youngest, or other). If the conditions are breached (no male or female is produced by the grantee), the estate reverts to the grantor or his heirs. In the United States, individual states have determined that this type of estate was never adopted as part of the English common law that a conditional fee was present and that, upon the birth of a child, it was converted to a fee-simple estate, or that statutes eliminated the estate and any reference to fee tail connotes fee-simple absolute.3
A life estate is considered a freehold estate since it can be conveyed to a third party, yet its duration is only measurable by some life. In essence the life estate lasts only for the life of some person. An “ordinary” life estate is normally worded “to Jones for life and then to Brown in fee-simple.” An estate per autre vie has a measured life other than that of the holder of the estate and may be worded “to Jones for the life of Brown and then to Smith in fee-simple.” This estate terminates with the death of Brown.
Life estates may be created by expressed provisions or words in a will or deed or by contract between heirs or parties in interest. If a question exists as to the creation of a life estate, the courts will look at the precise words used.4
Nature of modern estates. By law, an estate is the interest a person has in real or personal property. The word is sometimes used to mean the property or assets of a person, as in “the estate of John Doe.” In general, real estates are classified by the time of enjoyment, and they are (1) estate in fee, (2) estate for life, (3) estate for years, and (4) estate at will.
An estate in fee, sometimes called an estate in fee-simple, is the most absolute interest a person can have in land. It is of indefinite duration and is freely transferable and inheritable. More than one fee can be held on a given parcel of land; for example, one person may have the fee to minerals and another the fee to the land, excepting the minerals.
A defeasible fee-simple estate is one in which a future event must be met. It is an estate in fee that is liable to be defeated by some future contingency.5 The title is conveyed on the condition that certain things will be done within a time limit or that certain things will never be done. A fee may pass on the condition that a storm drain is installed, or that the property is never used for the sale of alcoholic beverages.
An indefeasible estate is one which cannot be defeated, revoked, or made void. The term is usually applied to an estate or right that cannot be defeated.6
A life estate is an estate limited to the life of the person or persons holding it, and will automatically revert upon the death of the individual. However, the holder of interest may, in some cases, transfer their interest to another, which will terminate upon the death of the original holder of the life estate. This is known as an estate per autre vie (for the life of another).
An estate for years is usually created by a lease between two parties whose relationship is that of landlord and tenant, such as a lease to use a parcel for 10 years, conditioned on payment of a given amount of money or other consideration.
An estate at will may be terminated at any time.7 It is an estate less than freehold, where lands and tenements are let by one person to another, to have and to hold at the will of the lessor, and the tenant, by force of this lease obtains possession.8
Transfer of Title and Property Rights
Whatever title or interest a person or entity has may be transferred, or acquired. The means by which this is accomplished may be categorized as follows:9
MEANS OF TRANSFERRING OR OBTAINING TITLE OR RIGHTS IN LAND10
Public grant. A public grant is defined as a grant from the public; a grant of a power, license, privilege, or property, from the state or government to one or more individuals, contained in or shown by a record, conveyance, patent, charter, or similar entity.11
A grant is the generic term applicable to all transfers of real property.12 A charter is an instrument emanating from the sovereign power, in the nature of a grant, either to the whole nation, or to a class or portion of the people, or to a colony or dependency, and assuring to them certain rights, liberties, or powers. Such were the charters granted to certain of...
