Easements and Real Estate – FAQ What is Real Estate Law? - Real estate law is an area of civil law that concerns the rights to possess, use, and enjoy an area of land. What is an easement? - An easement is the grant of a non-possessory property interest that entitles the holder to some form of use or enjoyment of another’s land. This gives the easement holder the right to cross onto or use the land of another for a specified reason. Easements are typically created for things like utilities or road access. An easement is considered to be either appurtenant to the land or in gross. - An easement appurtenant when it benefits its holder in his/her physical use or enjoyment of the property. To have an appurtenant easement, there must be two parcels of land involved; a dominant tenement, which gets the benefit; and a servient tenement, which bears the burden. - An easement in gross means the rights of the easement are for a specific person instead of the benefit of adjoining lands. This means it confers upon its holder only some personal or pecuniary advantage that is not related to his/her use or enjoyment of the land. With an easement in gross, the servient land is burdened, but there is no benefitted or dominant tenement. - Easements can also be affirmative or negative. An affirmative easement gives the easement holder the right to do something on another’s land. A negative easement restricts the holder of some land from doing something on the land. How do you create an affirmative easement? - An affirmative easement can be created: - 1) By Grant (if created for a duration of more than one (1) year, the grant must be in a writing that complies with the formal elements of a deed); - 2) By Implication (which means it is implied from existing use); - 3) By Necessity (usually in a landlocked setting; an easement of right of way will be implied by necessity if the grantor conveys a portion of his land with no way out except over part of his remaining land); or - 4) By prescription (an easement created by satisfying the elements of adverse possession). What is adverse possession? - Adverse possession, sometimes called a prescriptive easement, is a doctrine under which a person in possession of land owned by another may acquire title to it, so long as certain requirements are met. - The requirements of adverse possession are: 1 - 1) The use of the land must be Continuous (e.g. use must be uninterrupted for the statutory period of ten (10) years. - 2) The use must be Open and Notorious (meaning it is the sort of possession that the usual owner would make under the circumstances, and it is obvious to onlookers); - 3) The use must be Actual (meaning there must be a physical occupation of the land); and - 4) The use must be Hostile (meaning the possessor doesn’t have the true owner’s permission to be on the land; if permission is granted, adverse possession is defeated). How may an easement be transferred? - An appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance. The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner of the servient estate is a bona fide purchaser and the new owner does not have notice of the easement. - An easement in gross is not transferrable unless it is for commercial purposes. How do you terminate an easement? - An easement can be terminated through: - 1) Estoppel (where the servient land owner materially changes his/her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced); - 2) Necessity (easements created by necessity expire as soon as the need for the easement ends. However, if the easement of necessity was created by an express grant, the easement will not expire just because the need for the easement ends); - 3) Destruction of the servient land (e.g. the land was destroyed by something other than the willful conduct of the servient owner); - 4) Condemnation of the servient land (e.g. if the servient land is condemned through eminent domain, the easement will be terminated); - 5) Release (e.g. the easement holder gives the servient land owner a written release to end the easement); - 6) Abandonment (e.g. the easement holder demonstrates an intent to never use the easement again, through some physical action; such as building a structure that prevents use of the easement); - 7) Merger (also known as unity of ownership, where the easement is extinguished when title to the easement and title to the servient land become vested in the same person); or - 8) Prescription (the servient owner interferes with ownership of the easement by satisfying the elements of adverse possession). 2 Does a contract for land have to be in writing? Are there any implied promises given in a land contract? - A land contract must be in writing, be signed by the party to be bound, must sufficiently describe the land, and must state some form of consideration. - There are two implied promises in a land contract: - 1) The seller of the land promises to provide marketable title at the time of closing; and - 2) The seller promises not to make any false statements of material fact regarding the land. What is a mechanic’s lien? - A mechanic’s lien is a security interest against your property, available to contractors, laborers, or material suppliers, that is used to secure payment for work and materials used in building or repairing a structure on your property. Landlord – Tenant Law What do I need to know about a lease agreement? - The lease agreement controls matters involving the landlord and tenant. The lease agreement is a contract between the landlord and the tenant, which designates certain rights and responsibilities with regard to the use and enjoyment of real property. The lease will specify the duration of the rental agreement, the cost of rent, location, who may live on the premises, etc. Of particular importance, the lease may specify how disputes between the landlord and tenant are handled. It is important to seek advice from a qualified attorney prior to entering into a lease agreement, for help drafting a lease agreement, or if any disputes in the lease arise. For what reasons can my landlord evict me? - A landlord may evict a tenant when: - 1) the tenant is more than three (3) days late paying rent; - 2) the property is being sold by order of the court or through foreclosure; - 3) when the property is sold under power-of-sale and the purchaser has demanded possession; - 4) when the property is sold by executors, guardians, administrators, or on partition; - 5) where you have not vacated the property at the agreed upon time; - 6) where you have violated any renter’s terms imposed in Wyoming’s Residential Property Act, which include: - (i) Maintain the residential rental unit occupied in a clean and safe condition and not unreasonably burden any common area; - (ii) Dispose of all garbage and other waste in a clean and safe manner; 3 - (iii) Maintain all plumbing fixtures in a condition as sanitary as the fixtures permit; - (iv) Use all electrical, plumbing, sanitary, heating and other facilities and appliances in a reasonable manner; - (v) Occupy the residential rental unit in the manner for which it was designed and shall not increase the number of occupants above that specified in the rental agreement without written permission of the owner; - (vi) Be current on all payments required by the rental agreement; - (vii) Comply with all lawful requirements of the rental agreement between the owner and the renter; and - (viii) Remove all property and garbage either owned or placed within the residential rental unit by the renter or his guests prior to termination of the rental agreement and clean the rental unit to the condition at the beginning of the rental agreement; or - 7) by engaging in an act prohibited by renters, including: - (i) Intentionally or negligently destroy, deface, damage, impair or remove any part of the residential rental unit or knowingly permit any person to do so; - (ii) Interfere with another person's peaceful enjoyment of the residential property; or - (iii) Unreasonably deny access to, refuse entry to or withhold consent to enter the residential rental unit to the owner, agent or manager for the purpose of making repairs to or inspecting the unit, and showing the unit for rent or sale. - A tenant cannot be evicted based on race, religion, sex, or national origin. What is the process for eviction? - If a landlord wishes to evict a tenant, the landlord must notify the tenant to leave the premises. The notice must be served on the tenant at least three (3) days before commencing the action, by leaving a written copy with the defendant (tenant) or at his usual place of abode or business if he cannot be found. If the tenant has not left the premises by the time the three days are up, the landlord must then file a Forcible Entry and Detainer Action, asking the court to evict the tenant. - If there is an eviction action filed, the tenant must be given notice of the date of the hearing. If the tenant appears at the hearing, he/she will be able to ask the court not to evict him/her and must give reasons why there should be no eviction. However, if the tenant does not appear at the hearing, the court will evict him/her.