Thursday, December 31, 2009

Are you buying a home with an easement or does your home have an easement?

I was looking with a buyer at condominium units in Washington, DC and have been making casual inquires.

So, I found out that one condominium unit owner is thinking of sellingand has a garage spot,but his garage spot has an implied easement. How is this possible? The way the condominium was designed,the builder had a parking spot (this owner's spot) in the same path as the building's trash area. It is apparent that the trash can not be removed while a car is parked in the spot. So the owner must move his car out of the way every time the building has trash pick up. A major inconvenience.
This has been going on for over 20 years. This was either a structural defect by the
condominium builder or the condominium builder got greedy and tried to create as many parking spots as possible,that could be sold along with condominium units. Either way,the home buyer never thought about potential easement issues when buying the parking spot and my buyer would potnetially be buying into an easement. Apparently the owner has tried many times unsuccessfully to fight the easement.
The easement has made it very difficult for the owner to rent or sell his place. Because of the easement,this garage spot remains empty almost all of the time because of the hassle. It is unfortunate and really hurts the value of his property.

I know property owners who have yards that have been used for many years as short cuts and paths to different destinations. So, some people have claimed the area on the property as an easement.

When you are buying a home,whether a single family home or a home in a Condo/HOA community,read all of the disclosures carefully. There is a section for home owners
to fill in,answering if there are any easements.

Below is some more information about easements.

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A. An easement is a non-possessory right in the holder of an easement to make some
use of land. In other words, an easement is a “lesser” interest in the fee estate that
allows the party benefiting from the easement to make some use of the property,
such as using it for access, installation of utility lines, etc.
B. Dominant vs. Servient:
1. The “holder” of an easement right, or the party that is benefiting from the
easement, is referred to as the “dominant tenant”. Likewise, the property
benefiting from an easement is referred to as the “dominant estate” or
“dominant tenement”.
2. The party “burdened” by the easement is referred to as the “servient
tenant”. Likewise, the property burdened by the easement is the “servient
estate” or “servient tenement”.
C. Exclusive vs. non-exclusive easements
1. Because an easement right is non-possessory, it generally does not allow
the party benefited by the easement to exclude others or to stop them from
also enjoying the property. In other words, easements are generally nonexclusive.
2. However, easements can be specifically granted as exclusive easements,
allowing the holder of the easement right the ability to exclude others.
A. Appurtenant easements vs. easements in gross
1. An appurtenant easement is an easement that is intended to benefit a
particular piece of land (dominant estate/tenement) rather than a particular
individual. In this case, there is also a servient estate/tenement—the land
over which the dominant estate has its easement rights.
a. Example: An easement is granted to a shopping mall parcel for
access across the neighboring property owner’s private road in
order to allow shopping mall customers to get from the shopping
mall parking lot to the street. This is an easement appurtenant to
the shopping mall parcel, which is the dominant estate. The
neighbor who has granted the easement owns the servient estate.
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2. An easement in gross is intended to benefit a particular individual
regardless of whether she owns any land. The land over which this
individual has her easement rights is the servient estate/tenement. In the
case of an easement in gross, there may be no dominant estate/tenement.
The intent is to benefit the holder of the easement right, but the holder’s
right to use may well enhance the value of the property she uses in
connection with her exercise of an easement right.
a. EXAMPLE: Jim grants Sally an easement to fish in his pond,
which is located on his privately owned property. As part of this
easement right Sally is also granted an easement to enter onto
Jim’s property to go to and from the pond. While Sally may live
next door, she may move miles away, and the easement follows
her; NOT her property. This is an easement in gross; Sally is the
dominant tenant; Jim is the servient tenant; Jim owns the servient
estate (with the pond on it). There is NO dominant estate.
3. Most of the easements you will come across in commercial real estate
transactions are appurtenant easements.
B. Easement by implication, or quasi-easement
1. Narrow circumstances; court would be implying the easement as a matter
of law—requires a court finding that the parties had intended to create an
easement but simply failed to do so expressly
2. An implied easement can be created only when the grantor conveys a
portion of the real estate he owns or when he divides a larger tract among
separate grantees. In either case, a severance of parcels occurs, which is
a necessary prerequisite to an implied easement.
3. An easement can be implied at the time of severance ONLY if the
“easement” use existed prior to the severance. Susie owns 2 lots, one of
which fronts on a street and one of which is landlocked. Susie’s driveway
crosses both lots. Susie decides to keep the landlocked parcel and sell off
the frontage parcel. Susie forgets to reserve a driveway easement for
ingress an egress to her parcel. In order for Susie to establish that an
implied easement should be created, one of the prerequisites Susie must
prove is that she used the driveway located on the frontage property to
access her property PRIOR to the conveyance of the frontage property;
i.e., PRIOR to the severance.
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C. Easement by necessity
1. When property is divided in a way that leaves a part of the property
without access to a road (i.e., landlocked), an easement of ingress and
egress (“way by necessity”) is implied across the other part(s).
2. An easement by necessity exists only as long as the need exists. In other
words, if the landlocked property later has direct access to another public
road, the prior implied easement by necessity would go away.
D. Easement by prescription
1. Analogous to adverse possession—complicated concept but the bottom
line is this—an easement by prescription essentially follows the line of
thought that “it has been used for so many years for this purpose, an
easement, though not expressly created, was created by prescription”.
Example: Joe’s property is located between Sally’s home and the park.
Every day Sally walks across Joe’s property with her dog to get to the
park. Every day Sally walks back from the park across Joe’s property
back home. Sally has been doing this for 30 years (very old dog). Sally’s
argument that she has an easement by prescription would flow from this
type of fact pattern.
E. Affirmative and negative easements
1. An easement is affirmative when it entitles the dominant tenant to use the
servient tenement for a particular purpose, such as Sally’s right to use
Jim’s fishing pond.
2. An easement is negative when it entitles the dominant tenant to prevent
the servient tenant from using the property in a particular way. For
example, if Ralph gave Carol an easement for a view corridor across
Ralph’s property such that Carol’s view of the lake would never get
blocked, Ralph could not build a tall structure, wall or other obstruction,
or allow an obstruction (such as a tree), to hinder Carol’s rights under her
view corridor easement. This is referred to as a negative easement;
Carol’s view corridor rights allow her to compel Ralph to NOT do
F. How are easements created?
1. By express language, or grant. This is the most common method of
granting an easement: by a deed or written conveyance. “I grant you a
non-exclusive perpetual easement right to cross the westernmost 10 feet of
my property.”
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2. By reservation. In conveying land by deed, if the grantor wants to reserve
certain easement rights, another way to create that easement is by
reservation: “I convey fee interest in Lot 1 to you, Grantee, but I, Grantor,
reserve a non-exclusive easement for ingress and egress over the driveway
located on Lot 1.” This is a less common, but perfectly acceptable,
manner of creating easements.
G. Easements distinguished from licenses.
1. Easements and licenses are similar property interests, but there are some
important distinctions:
a. An easement is generally a perpetual, non-revocable right, while a
license is often revocable and is typically limited in duration.
b. An easement is insurable from a title insurance standpoint, while a
license is not typically insurable.
c. An easement is typically recorded; a license is not typically
d. Generally speaking, an easement is a more powerful property
interest than a license.
2. Requirements for creating an easement (generally the same as deed
formalities); when these formalities are not complied with, the grantee has
merely a license:
a. A written instrument
b. signed by the grantor and
c. delivered to the grantee
d. Easements are also typically recorded, which provides notice to
third parties
H. Examples of certain types of easements:
1. Short form utility easement
2. Easement for ingress and egress over someone’s property
3. Cross-access or reciprocal easement and maintenance agreement
a. Shared driveway
b. Shopping center parking area
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4. Construction easement
5. Conservation easement
6. Easement for light and/or air
a. No common law right to light or view—learn how to grow
b. Air rights use
7. Condominium/Townhome Declarations
8. Declaration of Covenants, Conditions, Restrictions and Easements
a. Shopping mall REAs
b. Mixed Use High-Rise Declaration of CC&Rs
I. One of the most important jobs a real estate lawyer has during the title and survey
review period during contract due diligence is to identify all existing easements,
both benefiting and burdening the property that the purchaser is acquiring.
1. Identify whether easement benefits or burdens the property, or both
a. If it benefits the property, make sure the easement is added as an
insured parcel under the title policy. If it is not insured, and the
purchaser is somehow deprived from its use of the easement, the
purchaser will have NO recourse against the title company. VERY
b. If it burdens the property, determine to what extent, location, etc.
2. Identify the type/nature of the easement
a. Is it a utility easement? Access easement?
b. Is the easement critical to the use of the property?
c. You need to get a full understanding of the purpose of the
easement, its function, who is benefited, whether it is necessary,
3. Ascertain the location of the easement
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a. This is one of the CRITICAL elements of the title and survey
review. If the easement is, say, a sewer line maintenance
easement, make SURE it is not located under any improvements.
If it is located under existing improvements, you must look to the
language in the easement to determine whether that is a problem
(typically anytime an easement runs under improvements that IS a
4. Identify which party has maintenance obligations, if any
a. If the easement is a cross-access easement for a driveway,
someone needs to maintain the driveway, repave it, plow it, etc.
Typically a cross easement will obligate one of the parties to
perform the maintenance and the other party will share in the
maintenance costs.
5. Identify whether there are any costs/payment obligations associated with
the easement
a. Same example regarding cross-access easement for driveway
6. Does easement provide for the right to obtain an estoppel from the other
party/parties to the easement?
a. Sometimes easements, particularly if they are complex enough,
contain rights to obtain an estoppel from the other party/parties to
the easement to verify that all fees are current, all maintenance has
been performed, there are no disputes, no pending litigation, etc.
7. Is there any way to get rid of a burdensome easement or somehow obtain
title company relief?
8. Termination
a. Unity of ownership/merger—operation of law
b. Valid written release
c. Abandonment
d. Lapse of time for easements limited in duration (such as a
temporary construction easement)
e. End of necessity
f. By default
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g. Invalidity
h. In the case of an easement by prescription, failure by the dominant
tenant (benefited party—Sally walking her 30 year old dog) to
object to unreasonable interference with the easement by the
servient tenant (Joe erects a fence across the easement area) or a
third party; if the dominant tenant (Sally) fails to enforce that right,
the easement will go away.
A. “Running with the land” is a phrase that means that, no matter who owns the real
estate, the easement (or other covenant) benefits or burdens the successor owner
of the property. In other words, a beneficial easement that runs with the land will
benefit future owners, while a burdensome easement that runs with the land will
burden future owners. In the discussion of appurtenant easements and easements
in gross, an appurtenant easement runs with the land of both the benefitted
(dominant) and burdened (servient) estates (tenements). An easement in gross
will run with the land as far as the burdened (servient) estate (tenement) is
concerned, but it will not run with the land of the benefited (dominant) estate
(tenement), because an easement in gross is personal in nature, and is not tied to
the benefited party’s property ownership.
IV. PERSONAL EASEMENTS--These are easements in gross, as discussed above. They
follow the person, not the real estate. They do NOT run with the land
A. An easement is a property right, and the benefited party has the right to enforce it
just as they would have the right to enforce a deed conveyance or another type of
land grant.
B. If the nature of the enforcement is such that the benefited estate/party is trying to
compel the burdened estate/party to honor the rights granted by the easement, the
best avenue of protection is making a title claim contemporaneously with a
demand from the other party to the easement. A necessary precursor to making
the title claim is that the easement was insured under the title policy.
C. If the nature of the enforcement is such that the burdened party is trying to compel
the benefited party to comply with the terms of the easement (such as paying
necessary share of maintenance costs), you would seek compliance like you
would in any other contractual dispute.
D. Some easements provide for arbitration as an alternative dispute resolution

Thursday, December 24, 2009

Yes,homes do sell on Christmas Eve

Interesting trend in Mongtomery County, MD and Washington DC, with the number of homes that sold and settled on Christmas Eve: 1998=0, 1999=9, 2000= 0, 2001= 12, 2002=20, 2003=31, 2004=16, 2005=0,2006= 1,2007=5, 2008=16, 2009...?. Does these numbers correlate to how you saw the market during these years? So,if you look at Christmas Eve as any kind of barometer,the real estate market has experienced a positive trend the last few years. May this trend continue.

It's a great day to buy a house. I'm going to be on office phones from 11:00 a.m. - 1 p.m. 301-718-4100 or my cell 301-943-4370 Owners of unsold homes may be jolly and waiting for the gift of an offer on their homes. They may rather just sign and celebrate then have a tough back and forth negotiation that takes some joy out of their holiday.

Why not celebrate the holiday with a new home.


Adam Bashein
Licensed in MD & DC

Weichert Realtors
7821 Tuckerman Lane
Potomac,MD 20854
301-718-4100 ext. 132

Wednesday, December 23, 2009

I have a potential listing appointment because my advertising has created facial recognition as well as name recognition!

I was at the supermarket and a gentleman introduced himself to me,asked if I am Adam Bashein, the realtor. He recognized me from my advertising, told me his home in a Maryland suburb isn't selling,the listing expires soon and if his home doesn't sell,he's going to give me a call. He already bought and moved, so the home is vacant. I said it was a pleasure meeting you,thanks for recognizing me,it is good to see advertising dollars well spent and hope to speak with you soon. He has my contact information.

A short while later I went out to tour homes that are on the market for sale,including his,so if I have the pleasure of speaking with the gentleman again,I can talk about the features of his home verses the competitions' home.

It's about marketing and being at the right place at the right time.

What happens when a home seller isn't sure that he/she wants to stay with his/her realtor? How does a seller go about exploring other options before making a decision to stay with his/her realtor or to make a switch. How should the potential realtors follow up on their conversations with these sellers?

When home sellers are unhappy with their listing agents, they have 2 choices,based on the verbiage in the listing agreement: (1)either to terminate the relationship with written notice or (2)to wait for the listing expires. Of course, if they decide not to sell, then they can withdraw their home from the nmarket. If the home sellers want to talk with other realtors to see what other options are,then the sellers must take every initiative in making telephone calls and inviting realtors to meet with them in person. Realtors cannot market/solicit business from home sellers who are currently in an agency agreement with another realtor. So the only way I will talk with the seller is if he takes calls me to talk on the telephone or to meet with him

It's about marketing and being at the right place at the right time. I'm here whenever you need me in Metro DC.


Adam Bashein
Licensed in MD & DC

Weichert Realtors
7821 Tuckerman Lane

Potomac,MD 20854
301-718-4100 ext. 132

Tuesday, December 22, 2009

Thinking of selling your home soon or down the road? Here are some potentially profitable home improvement ideas

This article is from the January 2010 issue of Realtor Magazine.
1. If you are in Metro DC (Maryland,DC and Virginia), contact me!

2. Open the link below. Some home improvement projects are low cost to do, but have have high impact on sale price.


Adam Bashein
Licensed in MD & DC

Weichert Realtors

7821 Tuckerman Lane

301-718-4100 ext. 132

Tuesday, December 8, 2009

Winter,spring,summer or fall,if there is buyer he/she will call

I was fortunate to recently get a listing in my neighborhood,Kemp Mill,a subdivision in Silver Spring,Maryland. Some people,including the seller asked me if the winter was indeed a good time to sell or if it was better to wait until the spring.
There are indeed good arguments for waiting until the spring,but here are some reasons to sell now:
1a. The first time home buyer tax credit was extended until April 30th 2010. Contracts need to be ratified by April 30th,2010 and settlement by June 30, 2010 and (b) they added a tax credit for repeat home buyers who are selling. Contracts need to be ratified by April 30th,2010 and settlement by June 30, 2010
---So,one thought on waiting to put your home on the market in the spring is that some buyers don't want to purchase during the academic year. Some buyers may not want to buy during the winter months. It may be hard for the seller to keep up the house/make it show well in the winter with snow,raking and other household tasks.
The potential tax credits won't be available at the end of the academic school year (at least not at this point). There may be more buyers trying to take advantage of the opportunity and so in a sense we are in the "spring market" right now.
--If you are a repeat buyer and want to be eligible for the tax credit,you also need to put your home on the market now as the repeat home buyer tax credit is based on selling your current home and buying your new home in a certain time frame.

2. Another reason to sell now or anytime is that people move at any point during the year due to such things as job transfers,if their family expands and their current home is now too small,they are renting and their lease is up and for such unfortunate circumstances as death and divorce.

3. Some buyers move look for homes in the winter...if they are looking for a winter home.

Interestingly,in part,due to the snow over the weekend,I got a call from buyers who want to see my listing today at 1014 South Belgrade Road. Perhaps they found the walk to their synagogue to be difficult/long probably because of snow,ice and slush on the sidewalks. My listing is right around the corner from their synagogue,so the home would be a perfect location for them.

At my open house on Sunday,one group came through who is also interested in the location for being close to the synagogue. Ideally they would like a home with a main floor bedroom (rambler or cape cod)because one of the buyers has arthritis is their leg. There are a couple of ramblers/cape cods on the market,but if one is Sabbath observant and needs to walk to his/her synagogue on the Sabbath and High Holidays,my listing might be a better fit,as they wouldn't have a flat walk (from both homes one needs to walk up/down a hill). If one needs a main level bedroom,he or she might be able to convert the carport into a bedroom or put an addition on the home.

Hopefully one of these buyers will be the next home owner of 1014 South Belgrade and if not,there are plenty of buyers out their looking for a home with a superior location.

Anyhow,the point is that one can make good arguments for selling in any season. Buyers are always out there with different circumstances and the extension of the tax credit for first time home buyers as well as the repeat home buyer tax credit
certainly make it advantageous to sell your home now.

If you need help, let me know.

Life is good!


Adam Bashein
Licensed in MD & DC

Weichert Realtors
7821 Tuckerman Lane
Potomac,MD 20854
301-718-4100 ext. 132

Saturday, December 5, 2009

Mortgage Rates at all time low. Time to buy or to sell!

According to today's (12/5/09) Washington Post,30-year mortgages are at their lowest level on record @4.71 percent. According to the Post,rates have been "pushed by an aggressive government campaign to reduce borrowing costs".***

It is a great time to buy a home. The lower the rates are the more house you can buy.
With the combination of historic rates and housing prices stabilizing,you should really consider buying. If you need to find a lender,I'd be happy to refer you to somebody.

As far as selling,low rates enable buyers to buy more house than ever and if your home is priced correctly/shows well and is easy to preview,your home will likely sell.

Real estate markets vary by state and by subdivision. I work MetroDc if you want to talk about the market to see if you are comfortable with the housing prices and begin the search with you.

It's a great day to buy a home. If you live or are interested in living in Silver Spring,Maryland stop by my listing tomorrow (Sunday 12/6/09 from 2-5).
The address is 1014 South Belgrade Road Silver Spring,MD 20902

Life is good!


Adam Bashein
Licensed in MD & DC

Weichert Realtors
7821 Tuckerman Lane
Potomac,MD 20854
301-718-4100 ext. 132