Property Reference: E

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Easement

An easement is the right of use over the real property of another. Historically it was limited to the right of way and rights over flowing waters. Traditionally it was a right that could only attach to an adjacent land and was for the benefit of all, not a specific person. The right is often described as the right to use the land of another for a special purpose. It is distinguished from a license that only gives one a personal privilege to do something on the land of another usually the right to pass over the property.

Easements may be considered public or private. A private easement is limited to a specific individual such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river.

Easements include:

* Storm drain easements. These carry rainwater to a river or other body of water.
* Sanitary sewer easements. These carry used water to a sewage treatment plant.
* Electrical power easements.
* Telephone easements.
* Sidewalk easements. Usually sidewalks are in the right-of-way, but sometimes they are on the lot.
* Driveway easements, also known as easement of access. A few lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have “mutual” driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easements may exist to allow for access to the roof and other parts of the house close to a lot boundary.

Note: A restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands to prevent them from being destroyed by development.

Eminent domain

In law, eminent domain is the power of the state to appropriate private property for public use without the owner’s consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.

In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

The term “expropriation” is often seen as synonymous with “eminent domain” and may especially be used with regard to jurisdictions that do not pay compensation for the confiscated property.

The term “condemnation” can also be used, particularly to describe the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects.

The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).

In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that “public use” of the property be demonstrated. Over the years the definition of “public use” has expanded to include economic development schemes which use eminent domain to displace private homes and businesses in order to transfer it to private developments that are more profitable. In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954) [1] (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=348&invol=26), permited the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004 [2] (http://michiganimc.org/feature/display/6334/index.php), as precedent. This expansion of the definition is before the United States Supreme Court in the fall of 2004 [3] (http://www.uncommonthought.com/mtblog/archives/092904-a_new_take_on_eminen.php), [4] (http://www.supremecourtus.gov/docket/04-108.htm), Kelo et al. vs. City of New London.

In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [5] (http://www.dsni.org/), a community group in Boston who attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.

In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that “Everyone has the right to respect for his private and family life, his home and his correspondence” and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that “Every natural person or legal person is entitled to the peaceful enjoyment of his possessions.” Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation.

In England and Wales, and other jurisdictions that follow the principles of English Law, the related term compulsory purchase is more commonly used.

Encumbrance

Anything that affects or limits the fee simple title to a property, such as mortgages, leases, easements, liens, or restrictions.

Also is a term used by colleges and universities to describe limitations placed on a student’s account due to late payment, late registration, or other reasons stated by the institution. An encumbrance can prohibit students from registering for classes, affect the release of their transcripts, or delay the reception of their diplomas.

Equity

Equity is the name given to the whole area of the legal system in countries following the English common law tradition that resolves disputes between persons by resort to principles of fairness and justness. Equity comes into play typically when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict. Thus, it is to be contrasted with “law,” which is the legal principles from the common law, the laws enacted by governments, and the “case law” (the principles set forth in courts’ opinions deciding cases).

The concept of “law” as opposed to “equity” is an accident of history. The “law courts” or “courts of law” were the courts all over England that enforced the king’s laws in medieval times. At some point in medieval history, the courts of law froze the types of claims they would hear, and the procedure that governed the hearing of those claims. Because the range of legal claims at that time was quite narrow, and legal procedures were painfully hypertechnical, the result was that many meritorious plaintiffs were denied relief.

However, remedies could also be obtained from the king directly, or, acting in the king’s place, the lord chancellor. Eventually the remedies given by the chancellor developed into the “chancery courts” or “courts of equity.”

In modern practice, perhaps the most important distinction between law and equity is the remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forebear from acting. Often this form of relief is in practical terms more valuable to a litigant. A plaintiff whose neighbor will not return his only milk cow, which wandered onto the neighbor’s property, for example, may want that particular cow back and not just its monetary value. Law courts also enter orders, called “writs” (such as a writ of habeas corpus) but they are less flexible and less easily obtained than an injunction.

Another distinction is the unavailability of a jury in equity. Equitable remedies can only be dispensed by a judge as it is a matter of law and not subject to the intervention of the jury as trier of fact. The distinction between “legal” and “equitable” relief is an important aspect of the American legal system. The right of jury trial in civil cases is guaranteed by the Seventh Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity.

A final important distinction between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness and flexibility, has only general guides, known as the maxims of equity. Indeed, one of the historic criticisms of equity as it developed was that it had no fixed rules of its own and each Lord Chancellor (who traditionally administered the courts of equity on behalf of the King) gave judgment according to his own conscience. John Selden, an eminent seventeenth century jurist, declared, “Equity varies with the length of the Chancellor’s foot.”

In the U.S. today, the federal courts and most state courts have combined both law and equity in the same courts, so a plaintiff can get legal and equitable relief in one proceeding. This reflects the position in England where the fusion of law and equity was substantially effected by the Judicature Acts 1873–1875. Several states, notably Delaware, however, still have separate courts for law and equity. Delaware’s Court of Chancery is where most cases involving Delaware corporations are decided. Some other states have separate divisions for legal and equitable matters in a single court. Besides corporate law, which developed out of the law of trusts, areas traditionally handled by chancery courts included wills and probate, adoptions and guardianships, and marriage and divorce.

After U.S. courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as joinder, counterclaim, cross-claim and interpleader originated in the courts of equity.v

Escrow

Escrow is a legal arrangement whereby a thing (often money, but sometimes other property such as art, a deed of title, or software source code) is delivered to a third party (called an escrow agent) to be held in trust pending a contigency or the fulfullment of a condition or conditions in a contract. Upon that event occurring, the escrow agent will deliver the thing to the proper recipient, otherwise the escrow agent is bound by her or his fiduciary duty to maintain the escrow account.

Real estate agents are in some jurisdictions considered to act as escrow agents when they accept deposits for the purchase of real property.

Software source code escrow agents hold source code in escrow in the event that the creator of the source code refuses or is unable to release the source code to the user of specialised software if that software no longer functions or in certain other events.

The word “escrow” is derived from the Middle English word “escrowl”, meaning “scroll”.

Estate Law

Estate is a term used in the common law. It signifies the total of a person’s property (including money), entitlements and obligations. It is often used in the context of will and probate. It may also be used in reference to real estate at type of real property as an estate in land.

An estate in land may be any carved out portion of the fee simple or allodial which is the most complete ownership that one can have of property in the common law system. An estate can be an estate for years, an estate at will, a life estate (extinguishing at the death of the holder) or a fee tail estate (to the heirs of one’s body).

Estate in land can also be described as estates of inheritance and other estates that are not of inheritance. The fee simple estate and the fee tail estate are estates of inheritance; they pass to the owner’s heirs by operation of law, either without restrictions in the case of fee simple, or with restrictions in the case of fee tail. The estate for years and the life estate are estates not of inheritance; the owner owns nothing after the term of years has passed, and cannot pass on anything to their heirs.

Estate House

An Estate is the grounds and often farmland and woods surrounding a very large property, such as a country house or mansion. It may refer to just the grounds or to the property and all other cottages and villages in the same ownership as the mansion itself. An example of such an estate is Woburn Abbey in Bedfordshire, England.

Common usage in the UK sometimes applies the term in a humorous fashion to the land attached to any property, such as a back garden.

Estate agent

In the United States and parts of the Commonwealth (including Canada and Australia), a real estate agent is a person who advises and represents others in transactions involving real estate. Practicing this profession usually requires a license. In the United Kingdom, the term estate agent is used.

The terms realtor and real estate broker are sometimes used to mean a real estate agent. However, a Realtor refers to a member of the National Association of Realtors, which claims a trademark on the term and states that realtor should not be used to refer to real estate agents who are not members. As for real estate broker, in some states the term is restricted to more experienced real estate agents who have a special license that allows them to operate a brokerage. In this type of licensing structure, individual real estate agents typically work for a broker.