What To Do If You Think Your Home Has Lead-Based Paint

Download the Current EPA Pamphlet, “Protect Your Family From Lead in Your Home”

By Jeff Sorg, OnlineEd Blog

(June 13, 2019)

(PORTLAND, Ore.) OnlineEd -If you think your home has lead-based paint, never try to remove it yourself and always keep painted surfaces in good condition to minimize deterioration. These are some other steps to follow:

  • Get your home checked for lead hazards. Find a certified inspector or risk assessor at epa.gov/lead.
  • Talk to your landlord about fixing surfaces with peeling or chipping paint.
  • Regularly clean floors, window sills, and other surfaces.
  • Take precautions to avoid exposure to lead dust when remodeling.
  • When renovating, repairing, or painting, hire only EPA- or state-approved Lead-Safe certified renovation firms.
  • Before buying, renting, or renovating your home, have it checked for lead-based paint.
  • Consult your health care provider about testing your children for lead. Your pediatrician can check for lead with a simple blood test.
  • Wash children’s hands, bottles, pacifiers, and toys often.
  • Make sure children avoid fatty (or high fat) foods and eat nutritious meals high in iron and calcium.
  • Remove shoes or wipe soil off shoes before entering your house.

Sellers and landlords must disclose known information on lead-based paint or lead-based paint hazards before selling or leasing a house built before 1978 and real estate sales contracts and lease agreements must include a specific warning statement about lead-based paint. By law, buyers and renters are given up to 10 days to check for lead before finalizing their decision to buy or rent.

In general, the older your home or childcare facility, the more likely it has lead-based paint. Many homes, including private, federally-assisted, federally-owned housing, and childcare facilities built before 1978 have lead-based paint. In 1978, the federal government banned consumer uses of lead-containing paint.

Click here to download the printer-friendly EPA Pamphlet Protect Your Family From Lead in Your Home {free}

Click here to visit the EPA web site for more information about lead.

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

Media Repeats False Information About Commissions

Are real estate boards losing the PR war against claims that internet brokerages charge less than “traditional brokerages?”

By Jeff Sorg, OnlineEd Blog

(June 10, 2019)

(PORTLAND, Ore.) OnlineEd – This is an enlightening video post from Frank and Brian over at The National Real Estate Post.  Watch the video and then download their real examples of closing statements to see how fees are represented to seem less than charged by traditional brokerages.

[Reposted with permission] Subscribe/Watch at their site: https://thenationalrealestatepost.com/

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

Categories: Mortgage, Real Estate

Freedom Mortgage Corp. to Pay $1.75 Million Penalty

CFPB settles with Freedom Mortgage Corporation

By Jeff Sorg, OnlineEd Blog

(June 5, 2019)

(WASHINGTON, D.C.) CFPB – The Consumer Financial Protection Bureau (Bureau) today announced a settlement with Freedom Mortgage Corporation (Freedom), one of the ten largest Home Mortgage Disclosure Act (HMDA) reporters nationwide.

Freedom is a mortgage lender with its principal place of business in Mount Laurel, N.J. For each year from 2013 through 2016, it originated more than 50,000 home-purchase loans, including refinancings of home-purchase loans. Freedom is required to collect, record, and report data on HMDA-covered transactions to comply with HMDA and Regulation C.

According to the consent order, the Bureau found that Freedom violated HMDA and Regulation C by submitting mortgage-loan data for 2014 to 2017 that contained errors. The Bureau found that Freedom reported inaccurate race, ethnicity, and sex information and that much of Freedom’s loan officers’ recording of this incorrect information was intentional. For example, certain loan officers were told by managers or other loan officers that, when applicants did not provide their race or ethnicity, they should select non-Hispanic white regardless of whether that was accurate.

Under the terms of the consent order, Freedom must pay a civil money penalty of $1.75 million and take steps to improve its compliance management to prevent future violations.

Read the consent order with all the details: https://files.consumerfinance.gov/f/documents/cfpb_freedom-mortgage-corporation_stipulation_2019-06.pdf

[source: CFPB press release]

 

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

First American Title/Financial Corp. May Have Leaked 885 Million Customer Records

Title company faces class action lawsuit for its apparent negligence

By Jeff Sorg, OnlineEd Blog

(May 29, 2019)

A class-action lawsuit is already filed in California after Brian Krebs, a cybersecurity expert, reported 885 million First American files were available without authentication to anyone with a web browser. The data allegedly included bank account numbers, social security numbers, and financial and tax records.

First American was ultimately notified by Brian Krebs of KrebsOnSecurity, who was contacted by a real estate developer in Washington state who said he’d had little luck getting a response from the company when told by him that a portion of its Web site (firstam.com) was leaking tens if not hundreds of millions of records. He said anyone who knew the URL for a valid document at the Web site could view other documents just by modifying a single digit in the link. Brian Krebs posted on his web site, “KrebsOnSecurity confirmed the real estate developer’s findings, which indicate that First American’s Web site exposed approximately 885 million files, the earliest dating back more than 16 years. No authentication was required to read the documents.” *

In their complaint**, Gibbs Law Group alleges, “First American made it incredibly easy for the public to access this private information by failing to implement even rudimentary security measures. Suppose that you are a First American customer. The company provides you with a URL to access your documents on its website. That URL might end in “DocumentID= 000000075.” Now suppose you want to access someone else’s personal file. Type the same URL but alter the Document ID number by one digit—say, “DocumentID=000000076”—and someone else’s personal file will appear. Change the numbers again (and again), and you will reveal still more personal files.”

* Read the entire Brian Krebs posting available on his website here: https://krebsonsecurity.com/2019/05/first-american-financial-corp-leaked-hundreds-of-millions-of-title-insurance-records/

** Class action lawsuit Gritz v. First American Financial Corp., 19-cv-01009, U.S. District Court, Central District of California (Santa Ana).

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark.

National Association of REALTORS® Moves to Dismiss Price-Fixing Lawsuit

Class action lawsuit claims real estate broker franchisors and National Association of Realtors conspire to require home sellers to pay buyer broker fees

By Jeff Sorg, OnlineEd Blog

(May 23, 2019)

CHICAGO (May 18, 2019) – The National Association of REALTORS® (NAR) moved to dismiss the Moehrl v. NAR lawsuit on the basis that the complaint misrepresents NAR rules for the operation of Multiple Listing Services (MLSs), which have long been recognized by the courts across the country as protecting consumers and creating competitive, efficient markets that benefit home buyers and sellers. The filing was made in federal court in Chicago.

“In today’s complex real estate environment, REALTORS® and Multiple Listing Services promote a pro-consumer, pro-competitive market for home buyers and sellers, contrary to the baseless claims of these class action attorneys,” said John Smaby, President of NAR. “Our filing today shows the lawsuit is wrong on the facts, wrong on the economics and wrong on the law.”

NAR’s brief points out that, as the centerpiece of their case, the seven class action law firms who represent one plaintiff have resorted to fundamentally mischaracterizing NAR’s rules. That mischaracterization, according to the NAR’s filing, led the class action attorneys to “dream up” purportedly anticompetitive rules that simply do not exist in NAR’s Handbook or Code of Ethics. In reality, NAR rules specifically direct listing brokers to determine – in consultation with their clients – the amount of compensation to offer buyers’ brokers in connection with their MLS listings. Furthermore, under NAR rules, a buyer’s broker is free to negotiate a commission from the listing broker that is different from what appears in the MLS listing. Neither NAR nor any MLS has any say in setting broker commissions.

Ultimately, these rules create a system of highly competitive markets where consumers receive superior service.

Beyond misreading the facts, NAR’s filing to dismiss demonstrates the shaky legal grounds of the plaintiff’s case, pointing out that the lawsuit disregards legal precedents that have upheld the pro-competitive benefits represented by the MLS system. For example, past court rulings have noted that NAR rules provide a more transparent marketplace, and encourage REALTORS® to share listing information and cooperate in the sale of real estate.

In fact, when considering the structure of commission payments, NAR’s filing notes that listing brokers’ offers of commission to buyers’ brokers on MLSs has been shown to actually increase the number of potential buyers. “When a seller elects to permit their brokers to pay compensation to the buyer’s broker, it frees up buyer cash thereby potentially increasing the number of buyers able to bid for that home and the amount of funds available for the purchase price,” the filing states.

“The MLS system is designed to create competitive markets to facilitate the sale of residential property in a way that benefits both buyers and sellers,” said Smaby.

Contrary to the career class action attorneys’ manufactured rules and claims, the plaintiff’s transaction was subject to the same rules as all transactions facilitated via an MLS: commissions are agreed upon up front by the seller and listing broker – independent of NAR – and commissions are negotiable. These rules have been proven to promote competition and ensure that brokers act in the best interests of their clients.

On the basis of these fundamental arguments that refute the plaintiff’s allegations and reading of legal precedent, as well as a failure to demonstrate harm, NAR is seeking to dismiss the lawsuit “with prejudice.”

[Source – NAR Press Release]

DEFENDANT: The National Association of Realtors, Realogy Holdings Corp., HomeServices of America Inc., RE/MAX Holdings Inc., Keller Williams Realty Inc.
CASE NUMBER: 1:19-cv-01610
COURT: U.S. District Court for the Northern District of Illinois

The National Association of REALTORS® is America’s largest trade association, representing more than 1.3 million members involved in all aspects of the residential and commercial real estate industries

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

Process for Oregon Real Estate Brokers, Principal Brokers to Continue Transactions after Changing Businesses

Oregon has rules to allow principal brokers and brokers to keep working for one brokerage after switching to another 

By Jeff Sorg, OnlineEd Blog

(May 20, 2019)

(PORTLAND, Ore.) OnlineEd –  Senate Bill 67, Section 5 and rule OAR 863-014-0063 set out criteria and a process that will allow a broker or principal broker changing real estate brokerages to continue to work on a sale, exchange, purchase, or lease transaction that was started while under the supervision of the previous brokerage. The law and rule were effective back on January 1, 2018. Here are the highlights:

Transferring Brokers

Following a license transfer, a real estate broker may continue to engage in professional real estate activity on transactions that began while associated with the sending principal broker (the previous principal broker) under the following limitations:

  • If there is a fully executed contract, an active written offer or counter-offer, or a letter of intent.
  • With the client’s documented approval.
  • With a written agreement between the sending principal broker with the old business and receiving principal broker with the new business. The agreement must:
    • Identify which principal broker is responsible for supervision, including record retention.
    • Identify the transaction or transactions included.
    • State the effective date.
    • Address agency relationships.
    • Specify how compensation will be handled.
    • Be signed by sending principal broker, the receiving principal broker, and the transferring broker.

Transferring Principal Broker

Following a license transfer, a principal broker may continue to engage in professional real estate activity on transactions that began while authorized to conduct professional real estate activity for the previous registered business name under the following limitations:

  • If there is a fully executed contract, an active written offer or counter-offer, or a letter of intent.
  • With the client’s documented approval.
  • With a written agreement between the transferring principal broker and the sending principal broker from the old business. The agreement must:
    • Identify responsibilities for supervision, as appropriate.
    • Identify responsibilities for record retention.
    • Identify the transaction or transactions included.
    • State the effective date.
    • Address agency relationships.
    • Specify how compensation will be handled.
    • Be signed by the transferring principal broker and the sending principal broker.

For additional information, please view OAR 863-014-0063 in its entirety.

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

About Those Arizona Bed Bugs

Highlights from Arizona Senate Bill 1306 (2011)

By Jeff Sorg, OnlineEd Blog

(April 30, 2019)

(OnlineEd) – Arizona Senate Bill 1306, passed in 2001, assigns specific responsibilities for bedbug control to landlord and tenants of multifamily housing.

Landlord Responsibilities:

  • Keep the dwelling unit free of a bedbug infestation
  • Provide tenants with a copy of the landlord’s responsibilities as outlined in SB 1306 on commencement of each lease
  • Provide educational materials to tenants, including:
    • Measures to prevent and control bedbugs.
    • General information about bedbugs and a description of their appearance.
    • Information about risk factors for attracting bedbugs such as:
      • used or discarded mattresses;
      • used or leased furniture;
      • pre-owned clothing; and
      • traveling without precautions to prevent transferring bedbugs back to the dwelling.
    • Information provided by the US Centers for Disease Control and Prevention and other Federal, State or Local health agencies.
    • Information provided by nonprofit housing organizations.
  • The landlord cannot enter into a lease with a tenant for a dwelling that has a known bed bug infestation.
  • Within seven business days after receipt of a written or electronic notice of a possible bedbug infestation from a tenant, the landlord or their licensed pest control operator shall visually inspect the unit for bedbugs and within seven business days after finding evidence of an infestation, the landlord will start a mitigation process in the unit.
  • Unless the landlord is a licensed applicator, the landlord shall not use any pest control techniques that constitute mitigation and shall use a pest control applicator who is licensed according to Title 32, Chapter 22.
  • The landlord will provide the tenant with written notice of the bedbug mitigation treatment protocol at least three business days before the initial treatment. Notice shall be deemed received by the tenant on the date the notice is personally delivered or mailed first class.
  • Unless otherwise provided in this section, the landlord is responsible for the bedbug mitigation expenses for the dwelling unit and any surrounding units that are infested.

Tenant Responsibilities:

  • The tenant shall maintain the dwelling unit free of an infestation of bedbugs.
  • The tenant shall not move materials into a dwelling that are infested with bedbugs.
  • A tenant who knows of the presence of bedbugs will provide the landlord written or electronic notification within three business days of discovering the presence of bedbugs. Notice provided by the tenant constitutes permission to the landlord to enter the dwelling for the sole purpose of inspecting for or mitigation of the bedbugs.
  • After receiving notice from the landlord of a bedbug inspection or mitigation, the tenant shall allow the landlord and the landlord’s licensed pest control applicator access to the dwelling.
  • The tenant shall comply with the bedbug mitigation protocol established by the licensed applicator, which may include pretreatment activities, temporary evacuation of the dwelling, posttreatment operations and an obligation to report the ineffective treatment or reinfestation to the landlord within three business days.
  • The tenant shall not apply or allow any unlicensed person to apply any bedbug control techniques that constitute mitigation.

If a landlord fails to inspect and, if necessary, mitigate an infestation, the tenant can give written notice to the landlord of the tenant’s intention to correct the condition, at the landlord’s expense. If the landlord fails to correct within ten days after being notified, the tenant can order the work to be done by a licensed pest control applicator, submit to the landlord an itemized statement for the pest control services and deduct from any rent due the actual and reasonable cost of the pest control treatment not to exceed five hundred dollars or one-half of the monthly rent, whichever is greater. If the tenant fails to comply with any of their obligations, the tenant may be held financially responsible for bedbug mitigation expenses for the dwelling and surrounding units that are also infested.

This law is for multi-family units. Landlords and tenants of single-family units are advised to work out their own agreement before when negotiating their agreements.

For additional information, please see the entire text of Arizona Senate Bill 1306.

 

 

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party or cited documents when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

Timeshare Scammers in Oregon

Real estate agent and brokerage names are being used to steal timeshare owners

By Jeff Sorg, OnlineEd Blog

(April 12, 2019)

(PORTLAND, Ore.) OnlineEd – The Oregon Real Estate Agency has put out a notice that timeshare scammers are using the names of legitimate Oregon real estate licensees and companies to steal from timeshare owners. These company and licensee names are being used without the permission or knowledge of the actual licensees or companies. Possible warning signs to share with your clients that a “timeshare reseller” may be a scammer:

  • They receive an unsolicited call from someone who has a “buyer” for, or wants to
    buy, your timeshare.
  • The contact information provided (address, phone number, or business name)
    doesn’t match what’s in the Oregon Real Estate Agency’s records for the company or licensee.
  • They are asked to wire money to pay a transfer “fee” or “tax” that is required so the
    transaction can close. Once paid, more and more “fees” may be needed for the
    transaction to close.
  • They are required to sign the deed over without the benefit of going through a
    licensed escrow company.

If one of your clients suspects a timeshare resale scam, ask them to report it to the Oregon Department of Justice.

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

Categories: Real Estate

All About Easements: The Easement in Gross

The easement in gross gives the owner of the easement the right to use real property for a particular purpose

By Jeff Sorg, OnlineEd Blog

(April 9, 2019)

(PORTLAND, Ore.) OnlineEd – The easement in gross gives the owner of the easement the right to use real property for a particular purpose. An easement in gross does not attach to or benefit a parcel of land and is usually created for the benefit of a legal person such as a utility company or railroad. The important characteristic of an easement in gross is that it gives the limited right to use another’s land and it is not created for the benefit of any land owned by the owner of the easement.

The land over which the easement in gross crosses is burdened by the easement and is known as the servient tenement. Since the easement right is personal and does not benefit another parcel of land, there is no dominant tenement.

Most easements in gross are for commercial purposes, are not revocable, (the servient tenement landowner cannot revoke the easement), and can be assigned to another legal entity. Some common examples of easements in gross are sewer lines, gas lines, electric lines, cable lines, etc.

Commercial easements in gross provide for the right to cross a property with the physical cable, pipe, power line or the like, as well as the right to re-enter the property after the initial installation to perform maintenance, repairs, and updates.

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark

All About Easements: The Easement Appurtenant

An easement appurtenant gives a property owner a right of usage to portions of an adjoining property

By Jeff Sorg, OnlineEd Blog

(April 5, 2019)

(PORTLAND, Ore.) OnlineEd – An easement appurtenant gives a property owner a right of usage to portions of an adjoining property owned by another party. The property enjoying the usage right is called the dominant tenement, or dominant estate. The property containing the physical easement itself is the servient tenement, since it must serve the easement use.

The term appurtenant means “attaching to.” An easement appurtenant attaches to the estate and transfers with it unless specifically stated otherwise in the transaction documents. More specifically, the easement attaches as a beneficial interest to the dominant estate, and as an encumbrance to the servient estate. The easement appurtenant then becomes part of the dominant estate’s bundle of rights and the servient estate’s obligation, or encumbrance.

Transfer. Easement appurtenant rights and obligations automatically transfer with the property upon transfer of either the dominant or servient estate, whether mentioned in the deed or not. For example, John grants Mary the right to share his driveway at any time over a five-year period, and the grant is duly recorded. If Mary sells her property in two years, the easement right transfers to the buyer as part of the estate.

Non-exclusive use. The servient tenement, as well as the dominant tenement, may use the easement area, provided the use does not unreasonably obstruct the dominant use.


The exhibit shows a conventional easement appurtenant. The driveway marked A belongs to Parcel #2. An easement appurtenant, marked B, allows Parcel #3 to use #2’s driveway. Parcel #3 is the dominant tenement, and #2 is the servient tenement.

Easement by necessity. An easement by necessity is an easement appurtenant granted by a court of law to a property owner because of a circumstance of necessity, most commonly the need for access to a property. Since property cannot be landlocked (without legal access to a public thoroughfare) a court will grant an owner of a landlocked property an easement by necessity over an adjoining property that has access to a thoroughfare. The landlocked party becomes the dominant tenement, and the property containing the easement is the servient tenement.

In the exhibit, Parcel #1, which is landlocked, owns an easement by necessity, marked C, across Parcel #2.

Party wall easement. A party wall is a common wall shared by two separate structures along a property boundary.

Party wall agreements generally provide for severalty ownership of half of the wall by each owner, or at least some fraction of the width of the wall. In addition, the agreement grants a negative easement appurtenant to each owner in the other owner’s wall. This is to prevent unlimited use of the wall, in particular, a destructive use that would jeopardize the adjacent property owner’s building. The agreement also establishes responsibilities and obligations for maintenance and repair of the wall.

Example: Helen and Troy are adjacent neighbors in an urban housing complex having party walls on property lines. They both agree that they separately own the portion of the party wall on their property. They also grant each other an easement appurtenant in their owned portion of the wall. The easement restricts any use of the wall that would impair its condition. They also agree to split any repairs or maintenance evenly.

Other structures that are subject to party agreements are common fences, driveways, and walkways.

A negative easement appurtenant does not allow the owner of the dominant estate to cross over the servient estate. Instead, the dominant estate has the right to restrict some activity or use of the servient estate.

Example: Developer Bud purchased a tract of land abutting Oceanfront Lake and divided it into two parcels. Lot A is on the shoreline and Lot B is farther back from the shore. Lot B has a good view of the lake because it is situated on higher ground that overlooks Lot A, but it is located behind Lot A and could be lost if Lot A builds a two-story house. Because Bud wants the best price for each parcel, he protects Lot B’s view of the lake by adding a deed restriction in Lot A’s deed to limit any structure built on Lot A to a single story.

In the example above, the owner of Lot B is the owner of a negative easement appurtenant. The dominant estate, Lot B, can prohibit certain activity on Lot A, the servient estate, that could block or restrict the view of the lake. In this situation, Lot B’s owner does not have an affirmative easement appurtenant and cannot cross over the land of Lot A to reach the lake, since only the view is protected.

Though not applicable to the above example, it is possible to have both an affirmative and negative easement at the same time. If an easement had been created to allow access to the lake as well as to limit the height of any structure, then the owner of Lot B would have both a negative and affirmative easement.

Easements appurtenant are created in any one of the following ways:

By grant or reservation – An easement created by grant or reservation is created by the express written agreement of the landowner. This is most frequently done in the deed but can be done in a separate recorded instrument. When done by grant, the owner of a property gives to someone else the easement right. When done by reservation, the owner of the property retains an easement on land conveyed to another.

By intent or necessity – The right to ingress (entry) and egress (exit) are required by law. Any property that is landlocked, meaning it has no ingress and egress, has these rights and a landlocked landowner has a right to an easement to cross the land of another to reach a public way. This type of easement for a landlocked owner is called an easement by necessity and is outlined in ORS 376. The servient estate in the easement by necessity may be entitled to compensation for the easement.

By prescription – An easement by prescription is the use of the land of another that is:

  • open and notorious (obvious to anyone);
  • actual, continuous (uninterrupted for the entire required period);
  • adverse to the rights of the true property owner;
  • hostile (in opposition to the claim of another, not “hostile” in the common sense); and
  • continuous for a statutorily defined period (10 years in Oregon).

An easement by prescription gives the dominant tenant the right of use, not ownership.

By implication – An easement by implication arises out of the conduct of the parties. This means it is an implied easement, not a written easement. An easement by necessity is distinguished from an easement by implication in that the easement by necessity arises only when “strictly” necessary, whereas the easement by implication can arise when “reasonably” necessary.

Easement by Implication – The right of lot owners in a subdivision to use a roadway on the approved subdivision plan without requiring a specific grant or easement to each new lot.

By condemnation – The government’s right to use the land of an owner is created by the exercise of its right of eminent domain. Eminent domain includes not only the right of the government to obtain an ownership interest in the property of a private owner; it also includes the right of the government to create a use easement over the land of a private property owner to benefit the government-owned land.

Easement by Condemnation – The US Bureau of Land Management uses its power of eminent domain to create an easement of right of way over private property to access government-owned, but landlocked forest land.

Easements appurtenant can be terminated by one of the following ways:

  • By the release of the easement by the dominant owner
  • By merging the dominant and servient lands into one tract
  • By abandonment of the easement by the dominant owner
  • By the purpose for which the easement was created ceasing to exist
  • By the expiration of the time for which the easement was created

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OnlineEd blog postings are the opinion of the author and not intended as legal or other professional advice. Be sure to consult the appropriate party when professional advice is needed.

For more information about OnlineEd and their education for real estate brokers, principal brokers, property managers, and mortgage brokers visit www.OnlineEd.com.

All information contained in this posting is deemed correct as of the date of publication, but is not guaranteed by the author and may have been obtained from third-party sources. Due to the fluid nature of the subject matter, regulations, requirements and laws, prices and all other information may or may not be correct in the future and should be verified if cited, shared or otherwise republished.

OnlineEd® is a registered Trademark