CORRECT!
A dishwasher attached to a building rented out as a
restaurant would most likely be a trade fixture. When the tenant moved out, they could take any trade fixtures
with them. Trade fixtures are therefore
considered personal property.
One last example of an encumbrance (for now) is an
EASEMENT. An Easement is a right
to use someone else’s property for a specific purpose. The first type of
Easement is an EASEMENT APPURTENANT (or an APPURTENANT EASEMENT). This is the right to use the land of a neighbor,
for example, if a property owner has a driveway over their neighbor’s
property. It does not necessarily have
to be a next-door neighbor. The
driveway could go over several properties.
In the drawing above, Bob has an Easement Appurtenant
over Tim’s property. An APPURTENENCE is
a benefit that goes along with ownership of a property. If Bob sold his property to Sara, the
benefit of that easement would transfer with the sale. The property that benefits from the
easement is called the DOMINANT TENEMENT.
In this case, that would be Bob’s property. The property the easement runs over is
called the SERVIENT TENEMENT. That
would be Tim’s property above.
Another type of easement is an EASEMENT BY
NECESSITY. All owners have the rights
of INGRESS and EGRESS, meaning they have the right to get on and off of their
property. We can use the same drawing
above (well plus, I don’t feel like drawing another one). If Bob’s property is completely landlocked
(i.e. surrounded by other properties with no access to the road), Bob may have
gotten the easement by going to court and claiming this right.
It may also be the case that Bob got his easement by
taking a shortcut over Tim’s property continuously over a long period of
time. This is called an EASEMENT BY
PRESCRIPTION (or a PRESCRIPTIVE EASEMENT).
The period of time varies from state to state. The usage must be visible, open and notorious (which all mean the
same thing), so that the property owner could possibly know this was happening,
and is done without permission (because if they had permission, that would be a
license). The easement would be claimed
through a court action after the required length of time has passed. The shortcut would not have to be used by
one owner for the entire time, as long as it is benefiting the same property. Let’s assume the property is located in a
state where the time requirement to gain an easement by prescription is 20
years. If Bob uses the shortcut for ten
years, and then he sells the property to Sara, who continues to use it for
another 10 years, for a total of 20 years, Sara could still go to court and
possibly have a Prescriptive Easement placed on Tim’s property. When there has been more than one owner over
the prescriptive period, this is called TACKING. Again, it still has to be benefiting the same property.
An EASEMENT BY CONDEMNATION is one obtained for a
public purpose, through the right of eminent domain. Maybe the government doesn’t want to take your property, they
just want to drive over it all the time.
They could do this instead. You
still have the same rights as when they are taking the property outright, such
as the rights to be fairly compensated or to challenge the attempted
condemnation in court.
A PARTY WALL is also a type of easement. This is a wall shared by two owners, as in a
townhouse or condominium. Each owner
has an easement on their neighbor’s property, and they could not do anything to
the wall, because their neighbor has the right for that wall to be there. The property line would run down the middle
of the wall.
One other type of easement is an EASEMENT IN
GROSS. While the other types of
easement benefit a particular property, an Easement in Gross benefits an
owner, such as a person or a company.
The local Gas & Electric Company may have utilities easements over
numerous properties, even though they are not neighbors of the property
owner. Or the owner of a large estate
may sell his property, but reserve a permanent right to hunt on that property
(not the same as permission to hunt, which again, would be a license).
Just as there
are various ways an easement can be created, there are also various ways an
easement can be terminated, mostly by going to court. The first way is if the reason for the easement no longer
exists. If the county builds a new road
behind Bob’s property, Tim could go to court and argue that it’s not necessary
for Bob to keep the old driveway.
Another way is if the properties are merged together. If Tim buys Bob’s property, and it becomes
one big property, and the easement would no longer exist. You can’t have an easement over yourself.
Another way an easement could be terminated is by
mutual agreement. If Tim and Bob agree
they hate each other’s guts and they don’t want to have anything to do with
each other, they could agree to terminate the easement. Abandonment would also terminate an
easement. If Bob runs off with the
circus and the driveway is not being used, and starts falling into disrepair,
Tim could go to court and use that as an argument for having the easement
removed. Or if Bob got an Easement by
Prescription, and then stops using it after he got it.
A similar concept to a Prescriptive Easement is
Adverse Possession. This is where
someone takes over ownership of a property by continuously possessing it over a
long period (normally the same time period used for a prescriptive
easement). This can also be a means of
terminating an easement. If Tim takes
possession of the driveway by putting up a wall, and Bob doesn’t say or do
anything about it for the duration of the required time period, Tim could go to
court and possibly claim possession of the easement.
Destruction of the Servient Tenement would be another
way. If two townhouses have a party
wall, and the houses are torn down, then there would be no reason for an
easement on either property.
Excessive Use also could be a legitimate reason. If Bob starts selling homemade cookies out
his house, and thousands of cars drive to the property every week to get them,
Tim might have a legitimate complaint in court.
Finally, any good reason the owner of the servient
tenement could come up with in court could terminate an easement if the courts
buy it. Remember, this is America. You can sue for anything (It’s the American
way).
You know, we’ve gone a while without a question:
Kelly gets permission to use Paul’s driveway for her
’69 Camaro. Which of the following is
true?
B. Kelly has an easement over Paul’s property.
C. Kelly could get a prescriptive easement if she uses the driveway
for a long enough period of time.
D. Paul’s property is the servient tenement.