Understanding Easements in Real Estate Transactions

 
Something to think about
Before the LTAA Webinar Begins
 
LET’S GET READY TO
RUMBLE!!
 
WELCOME TO TITLE TRIVIA
CHALLENGE!!!!
 
What level is your title knowledge?
 
Expert—Mandalorian
Confident—Cara Dune
Can get by—Kuill the Ugnaught
Beginner—Baby Yoda (cute but doesn’t have a
clue)
 
Question 1:
What is the Arizona Revised
Statute that requires the
disclosure of Trust Beneficiaries’
Names and addresses on documents
of conveyances?
 
Question 2:
 
The life of a judgment lien starts on the
on the date the judgment is granted by
the court and not on the recording date.
 
On 8-3-2018 the AZ Legislature passed
HB2240, extending the life of a
judgment.
 
How long is the life of a judgment lien
granted by the court on January 2,
2020?
 
Question 3:  How many feet are in a rod?
 
Question 4:
 
What does the acronym RON stand for?
undefined
 
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undefined
 
DEFINITION of an
DEFINITION of an
EASEMENT:
EASEMENT:
 
The right of one to use the land of
The right of one to use the land of
another for a limited purpose or
another for a limited purpose or
enjoyment.
enjoyment.
 
TYPES OF EASEMENTS
TYPES OF EASEMENTS
 
In Gross:
In Gross:
 
 
- Does not benefit any land
- Does not benefit any land
 
 
- Personal to easement holder
- Personal to easement holder
 
 
- Cannot be assigned OR INSURED
- Cannot be assigned OR INSURED
Appurtenant:
Appurtenant:
 
 
- Attaches as “appurtenance” to land
- Attaches as “appurtenance” to land
 
 
- Cannot exist apart from appurtenant land
- Cannot exist apart from appurtenant land
 
 
- Transfers with appurtenant land
- Transfers with appurtenant land
     
     
-  Creates an INSURABLE easement interest
-  Creates an INSURABLE easement interest
 
 
- Does not have to be contiguous
- Does not have to be contiguous
 
EASEMENT TERMS
EASEMENT TERMS
 
Dominant Tenement:
Dominant Tenement:
 
 
- The land which benefits from the
- The land which benefits from the
   
   
easement right
easement right
Servient Tenement:
Servient Tenement:
 
 
- The land burdened with the easement
- The land burdened with the easement
 
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MORE EASEMENT TERMS
MORE EASEMENT TERMS
 
Exclusive:
Exclusive:
 
 
- Servient owner cannot grant same
- Servient owner cannot grant same
easement FOR SAME PURPOSE to
easement FOR SAME PURPOSE to
another property owner
another property owner
Non-Exclusive:
Non-Exclusive:
 
 
- Same easement can be granted to
- Same easement can be granted to
other owners
other owners
 
 
- Easement is presumed to be Non-
- Easement is presumed to be Non-
exclusive unless specified exclusive
exclusive unless specified exclusive
 
TERMS continued…
TERMS continued…
 
Right-of-way
Right-of-way
 
 
- Can be an easement OR fee title
- Can be an easement OR fee title
 
 
- Generally refers to a public street or
- Generally refers to a public street or
 
 
railroad
railroad
License
License
 
 
- a temporary right to use of land
- a temporary right to use of land
 
 
- can be terminated at will of Grantor
- can be terminated at will of Grantor
 
 
- Must show as exception in Schedule B
- Must show as exception in Schedule B
 
 
- NEVER insure a license as an
- NEVER insure a license as an
  
  
easement right
easement right
 
WHAT DOCUMENTS CAN
WHAT DOCUMENTS CAN
CREATE AN EASEMENT?
CREATE AN EASEMENT?
 
Grant of Easement, Easement Agreement
Grant of Easement, Easement Agreement
Deed
Deed
Reservation on Deed
Reservation on Deed
Deed of Trust
Deed of Trust
Grant on plat or survey
Grant on plat or survey
Court Order
Court Order
 
Required Elements
Required Elements
for Insurability:
for Insurability:
 
Created by Grant, Agreement or
Created by Grant, Agreement or
Reservation
Reservation
Preferred phrases/words of
Preferred phrases/words of
conveyance/creation:
conveyance/creation:
 
 
Convey, Grant, together with
Convey, Grant, together with
 
 
Reserving, excepting (to Grantor)
Reserving, excepting (to Grantor)
NON-preferred phrases/words:
NON-preferred phrases/words:
 
 
Subject to, including, agrees to grant,
Subject to, including, agrees to grant,
 
 
will grant (future tense)
will grant (future tense)
 
REQUIRED ELEMENTS:
REQUIRED ELEMENTS:
(continued)
(continued)
 
Creates an interest in land of ANOTHER
Creates an interest in land of ANOTHER
 - 
 - 
 
 
same person cannot be both Grantor
same person cannot be both Grantor
 
 
and Grantee
and Grantee
Appurtenance:  must be granted/reserved
Appurtenance:  must be granted/reserved
for the benefit of a parcel (appurtenant),
for the benefit of a parcel (appurtenant),
NOT personal to the Grantee/Grantor (in
NOT personal to the Grantee/Grantor (in
gross)
gross)
 
MORE PREFERRED
MORE PREFERRED
LANGUAGE
LANGUAGE
to assure easement runs with the land
to assure easement runs with the land
 
 
 
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REQUIRED ELEMENTS:
REQUIRED ELEMENTS:
(continued)
(continued)
 
Purpose of Easement
Purpose of Easement
Legal description of Easement
Legal description of Easement
Description of appurtenant land
Description of appurtenant land
(Dominant tenement)
(Dominant tenement)
 
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:
:
Must do full search of
Must do full search of
Servient tenement
Servient tenement
Confirm ownership of
Confirm ownership of
property by Grantor
property by Grantor
Take exception to prior
Take exception to prior
granted easements
granted easements
Call for consents from
Call for consents from
any lenders
any lenders
Call for any unpaid taxes
Call for any unpaid taxes
to be paid
to be paid
 
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:
:
Trace easement back to
Trace easement back to
creation
creation
Review creation document
Review creation document
for proper conveyance,
for proper conveyance,
appurtenance to your land
appurtenance to your land
Is easement described in
Is easement described in
subsequent deeds?
subsequent deeds?
Review subsequent chain
Review subsequent chain
for merger, termination,
for merger, termination,
amendment, foreclosures of
amendment, foreclosures of
prior liens
prior liens
 
RECIPROCAL EASEMENTS
RECIPROCAL EASEMENTS
 
Rights AND Obligations shared by two or more
Rights AND Obligations shared by two or more
property owners
property owners
Usually created by Declaration of Reciprocal
Usually created by Declaration of Reciprocal
Easement or Reciprocal Easement (NOT deed)
Easement or Reciprocal Easement (NOT deed)
Creates both an insurable easement interest in
Creates both an insurable easement interest in
Schedule A AND a Schedule B exception
Schedule A AND a Schedule B exception
(easements and restrictions)
(easements and restrictions)
 
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Remember the Basic Elements:
Remember the Basic Elements:
- Grantor/Grantee
- Grantor/Grantee
- Conveyance/reservation language
- Conveyance/reservation language
- Appurtenant property described
- Appurtenant property described
- Proper appurtenance language
- Proper appurtenance language
Cannot reserve easement for the benefit of a
Cannot reserve easement for the benefit of a
third party/property owned by someone other
third party/property owned by someone other
than Grantor (lack of conveyance/constructive
than Grantor (lack of conveyance/constructive
notice)
notice)
 
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Express release or abandonment
Express release or abandonment
(recorded document)
(recorded document)
Foreclosure of lien recorded PRIOR to creation
Foreclosure of lien recorded PRIOR to creation
of easement right, if easement holder is noticed
of easement right, if easement holder is noticed
Court action
Court action
Abandonment (by non-use)
Abandonment (by non-use)
Merger of Title
Merger of Title
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B
 
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Enlargement of Easement:
Enlargement of Easement:
 
 
- Enlarging the easement area
- Enlarging the easement area
 
 
- Adding to the permitted uses
- Adding to the permitted uses
     - Expanding the dominant tenement
     - Expanding the dominant tenement
 
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Section line >>
 
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Enlargement of Easement:
Enlargement of Easement:
 
 
- Expanding the dominant tenement
- Expanding the dominant tenement
 
 
- Enlarging the easement area
- Enlarging the easement area
 
 
- Adding to the permitted uses
- Adding to the permitted uses
Overburdening of Easement:
Overburdening of Easement:
 
 
- Increasing the use of the easement
- Increasing the use of the easement
 
 
beyond the scope intended by the
beyond the scope intended by the
 
 
original grant
original grant
 
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1.
Conveying “together with” an easement that
Conveying “together with” an easement that
should be reserved.
should be reserved.
2.
“Reserving” an easement that should be
“Reserving” an easement that should be
“together with”.
“together with”.
3.
Insuring an appurtenant easement which was
Insuring an appurtenant easement which was
never granted to benefit the subject property.
never granted to benefit the subject property.
4.
Failure to re-create an easement which was
Failure to re-create an easement which was
terminated by merger of title.
terminated by merger of title.
5.
Failure to include an easement which was
Failure to include an easement which was
properly reserved to Seller, in subsequent
properly reserved to Seller, in subsequent
conveyance of that Seller’s remaining parcel.
conveyance of that Seller’s remaining parcel.
 
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Parcel No. 1:
Parcel No. 1:
 
Parcel B, according to Record of Survey recorded in Book 22, page
33, records of Coconino County, Arizona, being a portion of Section
1, Township 21 North, Range 9 East, Gila and Salt River Base and
Meridian, Coconino County, Arizona.
 
Parcel No. 2:
Parcel No. 2:
 
An easement for ingress and egress and utilities, as created in
instrument recorded in Instrument No 3561295, records of Coconino
County, Arizona, over the South 30 feet of Parcel A, according to
Record of Survey recorded in Book 22, page 33, records of
Coconino County, Arizona, being a portion of Section 1, Township
21 North, Range 9 East, Gila and Salt River Base and Meridian,
Coconino County, Arizona.
 
Said easement is appurtenant to and for the benefit of Parcel No. 1
described herein.
 
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Parcel No. 1:
Parcel No. 1:
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Parcel No. 2:
Parcel No. 2:
An easement for ingress and egress and utilities, created herein, over the
An easement for ingress and egress and utilities, created herein, over the
South 30 feet of Parcel A, according to Record of Survey recorded in Book
South 30 feet of Parcel A, according to Record of Survey recorded in Book
22, page 33, records of Coconino County, Arizona, being a portion of
22, page 33, records of Coconino County, Arizona, being a portion of
Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and
Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and
Meridian, Coconino County, Arizona.
Meridian, Coconino County, Arizona.
Said easement is appurtenant to and for the benefit of Parcel No. 1
Said easement is appurtenant to and for the benefit of Parcel No. 1
described herein.
described herein.
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Explore the world of easements in real estate dealings, from definitions and types to essential terms like dominant tenement and servient tenement. Enhance your knowledge on creating and insuring appurtenant easements before diving into a challenging title trivia challenge.


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  1. Something to think about Before the LTAA Webinar Begins LET S GET READY TO RUMBLE!! WELCOME TO TITLE TRIVIA CHALLENGE!!!!

  2. What level is your title knowledge? Expert Mandalorian Confident Cara Dune Can get by Kuill the Ugnaught Beginner Baby Yoda (cute but doesn t have a clue)

  3. Question 1: What is the Arizona Revised Statute that requires the disclosure of Trust Beneficiaries Names and addresses on documents of conveyances?

  4. Question 2: The life of a judgment lien starts on the on the date the judgment is granted by the court and not on the recording date. On 8-3-2018 the AZ Legislature passed HB2240, extending the life of a judgment. How long is the life of a judgment lien granted by the court on January 2, 2020?

  5. Question 3: How many feet are in a rod? Question 4: What does the acronym RON stand for?

  6. EASEMENTS How-to s and What-nots Of creating and insuring Appurtenant easements

  7. DEFINITION of an EASEMENT: The right of one to use the land of another for a limited purpose or enjoyment.

  8. TYPES OF EASEMENTS In Gross: Appurtenant: - Attaches as appurtenance to land - Cannot exist apart from appurtenant land - Transfers with appurtenant land - Creates an INSURABLE easement interest - Does not have to be contiguous - Does not benefit any land - Personal to easement holder - Cannot be assigned OR INSURED

  9. EASEMENT TERMS Dominant Tenement: - The land which benefits from the easement right Servient Tenement: - The land burdened with the easement

  10. Easement Servient Tenement Dominant Tenement

  11. MORE EASEMENT TERMS Exclusive: - Servient owner cannot grant same easement FOR SAME PURPOSE to another property owner Non-Exclusive: - Same easement can be granted to other owners - Easement is presumed to be Non- exclusive unless specified exclusive

  12. TERMS continued Right-of-way - Can be an easement OR fee title - Generally refers to a public street or railroad License - a temporary right to use of land - can be terminated at will of Grantor - Must show as exception in Schedule B - NEVER insure a license as an easement right

  13. WHAT DOCUMENTS CAN CREATE AN EASEMENT? Grant of Easement, Easement Agreement Deed Reservation on Deed Deed of Trust Grant on plat or survey Court Order

  14. Required Elements for Insurability: Created by Grant, Agreement or Reservation Preferred phrases/words of conveyance/creation: Convey, Grant, together with Reserving, excepting (to Grantor) NON-preferred phrases/words: Subject to, including, agrees to grant, will grant (future tense)

  15. REQUIRED ELEMENTS: (continued) Creates an interest in land of ANOTHER - same person cannot be both Grantor and Grantee Appurtenance: must be granted/reserved for the benefit of a parcel (appurtenant), NOT personal to the Grantee/Grantor (in gross)

  16. MORE PREFERRED LANGUAGE to assure easement runs with the land appurtenant to and for the benefit of the following described property: (easement rights pass/transfer with the land) to the Grantee (or reserving to the Grantor), his heirs, successors and assigns

  17. REQUIRED ELEMENTS: (continued) Purpose of Easement Legal description of Easement Description of appurtenant land (Dominant tenement)

  18. EXAMINING AN APPURTENANT EASEMENT CREATING NEW EASEMENT: Must do full search of Servient tenement Confirm ownership of property by Grantor Take exception to prior granted easements Call for consents from any lenders Call for any unpaid taxes to be paid TRANSFERRING EXISTING EASEMENT: Trace easement back to creation Review creation document for proper conveyance, appurtenance to your land Is easement described in subsequent deeds? Review subsequent chain for merger, termination, amendment, foreclosures of prior liens

  19. RECIPROCAL EASEMENTS Rights AND Obligations shared by two or more property owners Usually created by Declaration of Reciprocal Easement or Reciprocal Easement (NOT deed) Creates both an insurable easement interest in Schedule A AND a Schedule B exception (easements and restrictions)

  20. TWO-PARTY RECIPROCAL EASEMENT

  21. PROPER EASEMENT RESERVATION (on Deed) Remember the Basic Elements: - Grantor/Grantee - Conveyance/reservation language - Appurtenant property described - Proper appurtenance language Cannot reserve easement for the benefit of a third party/property owned by someone other than Grantor (lack of conveyance/constructive notice)

  22. TERMINATION OF EASEMENTS (intended or NOT!) Express release or abandonment (recorded document) Foreclosure of lien recorded PRIOR to creation of easement right, if easement holder is noticed Court action Abandonment (by non-use) Merger of Title

  23. MERGER SCENARIO 1 B A A

  24. MERGER SCENARIO 1 (continued) B B

  25. MERGER SCENARIO 1 (continued) C B D D E

  26. MERGER SCENARIO 2 A B Street

  27. MERGER SCENARIO 2 (continued) A C B Street

  28. MERGER SCENARIO 2 A B Street

  29. GIVE EM AN INCH Enlargement of Easement: - Enlarging the easement area - Adding to the permitted uses - Expanding the dominant tenement

  30. EASEMENT ENLARGEMENT Section line >> A B C Street

  31. GIVE EM AN INCH Enlargement of Easement: - Expanding the dominant tenement - Enlarging the easement area - Adding to the permitted uses Overburdening of Easement: - Increasing the use of the easement beyond the scope intended by the original grant

  32. TOP FIVE EASEMENT BOO-BOOS (and we do it to ourselves!) 1. Conveying together with an easement that should be reserved. 2. Reserving an easement that should be together with . 3. Insuring an appurtenant easement which was never granted to benefit the subject property. 4. Failure to re-create an easement which was terminated by merger of title. 5. Failure to include an easement which was properly reserved to Seller, in subsequent conveyance of that Seller s remaining parcel.

  33. SAMPLE LEGAL DESCRIPTION INCLUDING APPURTENANT EASEMENT (EXISTING) Parcel No. 1: Parcel B, according to Record of Survey recorded in Book 22, page 33, records of Coconino County, Arizona, being a portion of Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and Meridian, Coconino County, Arizona. Parcel No. 2: An easement for ingress and egress and utilities, as created in instrument recorded in Instrument No 3561295, records of Coconino County, Arizona, over the South 30 feet of Parcel A, according to Record of Survey recorded in Book 22, page 33, records of Coconino County, Arizona, being a portion of Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and Meridian, Coconino County, Arizona. Said easement is appurtenant to and for the benefit of Parcel No. 1 described herein.

  34. SAMPLE LEGAL DESRIPTION EASEMENT BOTH RESERVED AND GRANTED (NEW) Parcel No. 1: Parcel B, according to Record of Survey recorded in Book 22, page 33, records of Coconino County, Arizona, being a portion of Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and Meridian, Coconino County, Arizona. RESERVING TO THE GRANTOR, his heirs, successors or assigns, an easement for ingress and egress and utilities over the South 30 feet of said Parcel No. 1. Said easement is appurtenant to and for the benefit of {grantor s remaining property as described in Document No. XX-XXXXX} (OR Parcel A, according to Record of Survey recorded in Book 22, page 33} Parcel No. 2: An easement for ingress and egress and utilities, created herein, over the South 30 feet of Parcel A, according to Record of Survey recorded in Book 22, page 33, records of Coconino County, Arizona, being a portion of Section 1, Township 21 North, Range 9 East, Gila and Salt River Base and Meridian, Coconino County, Arizona. Said easement is appurtenant to and for the benefit of Parcel No. 1 described herein.

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