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 elseís 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 neighborís 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 Timís 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 Bobís property.The property the easement runs over is called the SERVIENT TENEMENT.That would be Timís 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 donít feel like drawing another one).If Bobís 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 Timís 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.Letís 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 Timís 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 doesnít 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 neighborís 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 Bobís property, Tim could go to court and argue that itís not necessary for Bob to keep the old driveway.Another way is if the properties are merged together.If Tim buys Bobís property, and it becomes one big property, and the easement would no longer exist.You canít have an easement over yourself.


Another way an easement could be terminated is by mutual agreement.If Tim and Bob agree they hate each otherís guts and they donít 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 doesnít 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 (Itís the American way).


You know, weíve gone a while without a question:


Kelly gets permission to use Paulís driveway for her í69 Camaro.Which of the following is true?


A.Kelly has a license.

B.Kelly has an easement over Paulís property.

C.Kelly could get a prescriptive easement if she uses the driveway for a long enough period of time.

D.Paulís property is the servient tenement.