Understanding Real Estate Easements

Summary

The user, Marc, inquired about the merger doctrine and easements in real estate law, specifically in Oregon. The merger doctrine was explained as the merging of contract terms into the deed when a buyer acquires property title. The concept of easements was discussed, emphasizing that one cannot grant an easement to oneself. The conversation further explored the impact of property separation, such as through sale or foreclosure, on easements. The user was informed that extinguished easements do not automatically revive and need to be re-established. The discussion also covered the establishment of easements for landlocked properties, the conditions for creating an apparent easement, and the principle of prescriptive easement. The user was guided on seeking a Prescriptive Easement through the court. The conversation also touched upon the necessity for an easement, reasonable use or access of property, excessive burden on servient property, and interference with servient and dominant properties. The user was informed

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Is real estate merger doctrine when two pieces of property separate or come together?
Hello ****, The merger doctrine in real estate generally applies when a buyer under a contract for sale acquires the title to property. The contract terms merge into the deed and no longer exist separately. This doesn't mean properties are physically merging or separating. Can you clarify your location to provide more specific information?
It is said one cannot give easement to oneself on real estate.
Hi ****, that's right. In most jurisdictions, it's not possible to grant an easement to oneself because easements typically involve two different parties - a servient estate (the one giving the easement) and a dominant estate (the one receiving it). Can I know your location to give more precise information?
Portland Oregon
In Oregon, you're correct that one cannot grant an easement to oneself. Easements involve two separate parties: the 'servient' estate granting the easement, and the 'dominant' estate benefiting from it. However, if properties merge under a single owner, easements typically extinguish.
What if adjoining properties separate during merger doctrine, or foreclosure.
In Oregon, if previously merged properties separate, such as through sale or foreclosure, any extinguished easements don't automatically revive. They would need to be re-established. In foreclosure, the bank may have the power to sever the merger.
If neighbor purchases adjoining property as new owner.
If your neighbor in Oregon purchases a property adjoining yours that was previously part of a merger, any extinguished easements don't automatically revive. Your neighbor would need to establish new easements if needed.
If owner purchases adjacent landlocked property.
If an owner in Oregon purchases an adjacent landlocked property, they might establish an easement for access. This typically requires negotiation with neighboring property owners or a court order if agreements can't be reached.
If an owner purchases an adjacent landlocked property. Then uses one access for both properties. Does that upon immediate use create an apparent easement?
In Oregon, immediate use of an access way after purchasing an adjacent landlocked property does not automatically create an apparent easement. There are specific conditions to be met for an easement to be established, such as necessity, long-time usage, or court order.
If an owner purchases an adjacent landlocked property on a very steep slope without existing driveway to adjoining public road. But then uses adjacent on landlocked properties driveway. Will the landlocked property have created at legal easement by over 5 years access use?
In Oregon, the legal principle of "prescriptive easement" may apply. This occurs when a property has been used openly, continuously, and without owner's permission for over 10 years. However, it doesn't automatically get recognized. A court order is often required to establish it.
What kind of court order is sought for right of way by adjacent driveway?
In Oregon, you would generally need to seek a "Prescriptive Easement" through the court if you've openly and continuously used an adjacent driveway for over 10 years without permission. It's advisable to consult with a local attorney to guide you through the process.
If the access of the only landlocked property is adjoining a public street on one side, and is currently non-existent driveway on a very steep slope, is it necessary for easement to use the adjoining other owners existing driveways current access?
In Oregon, if a landlocked property has some access to a public road, an easement may not be necessary. However, if the slope is too steep, making it impractical or unsafe, the owner might need to negotiate an easement with neighboring properties for better access.
What if the access is already existing and has been used by both adjoining properties under same ownership?
In Oregon, if both properties under the same ownership have been using an existing access, it may be considered shared use. However, if ownership changes, the new owner may need to negotiate continued access or establish a new easement.
What if the previous owner owned both properties and shared the access. Then a new owner purchases the property with titled access?
In Oregon, if a new owner purchases the property with previously shared access, the easements do not automatically transfer. The new owner would have to negotiate continued access or establish a new easement, often requiring a legal agreement or court order.
What elements or specific conditions constitutes necessity?
In Oregon, necessity for an easement might be established if:
- There's no alternative access to the landlocked property
- Existing access is impractical, unsafe, or insufficient
- The necessity existed at the time the properties were divided
- The easement is required for reasonable use of the property.
Please consult a local attorney for specific advice.
What defines a reasonable use or access of property?
In Oregon, "reasonable use or access" typically refers to:
- Safe and practical entrance to and exit from the property
- Access that does not excessively burden the servient property
- Use that aligns with the property's intended purpose
- Access that doesn't interfere with the rights of others
Please consult with a local attorney for case-specific advice.
What is defined as excessive burden on servant property?
In Oregon, "excessive burden" on a servient property might include:
- Interference with the property owner's use of their land
- Causing significant damage or changes to the property
- Overuse beyond what is reasonable or necessary for access
- Creating safety risks or other unwarranted inconveniences
Please consult with a local attorney for more specific advice.
What defines interference with servant property?
In Oregon, interference with the servient property could mean:
- Blocking the property owner's access to their own land.
- Creating noise, pollution, or other disturbances.
- Making alterations or improvements without consent.
- Usage that exceeds what's reasonable for the easement's purpose.
Please consult a local attorney for specific advice.
What constitutes interference to dominant property?
In Oregon, interference with the dominant property could include:
- Preventing the property owner from using their easement.
- Obstructing the easement in a way that makes it less useful.
- Changing the servient property in a way that disrupts the easement.
- Interfering with the easement's purpose or enjoyment.
Consult a local attorney for specific advice.
Is there considered a dominant and servant property for shared access of adjoining properties?
In Oregon, for shared access of adjoining properties, one could be considered the 'dominant estate' (benefits from the easement) and the other the 'servient estate' (grants the easement). The definitions depend on who has the easement and who grants it.
What defines easement in reservation?
In Oregon, an "easement in reservation" is created when a landowner sells a portion of their land but reserves an easement over the sold portion for their benefit. This might include access rights or utility easements. It should be explicitly stated in the deed.
What if it was not stated in the deed because of merger through foreclosure but had been recorded in public notice records after default on loan?
In Oregon, if an easement was not stated in the deed due to merger through foreclosure, but was recorded in public notice records post-default, it's complex. The foreclosure might have extinguished the easement. However, if the easement benefits the public or another property, it may not be extinguished. Consult a local attorney.
Yes the benefit was to an adjacent property with shared driveway. Will the easement use survive merger if the driveway is the only existing current access even though the dominant property is adjacent to public road without access because of steep slope?
In Oregon, if the driveway is the only practical access to the property due to a steep slope, the easement could potentially survive a merger. However, this is a complex situation and may depend on specific circumstances. Consult a local attorney.
What are Oregon case laws examples of necessity use of a shared driveway as only shared access for both adjacent properties?
In Oregon, case laws regarding necessity use of shared driveways include:
- "Wiley v. Bunker" (*): An easement by necessity was upheld due to the landlocked nature of the property.
- "Day v. Armstrong" (*): The court determined that an easement by necessity existed due to the lack of other practical access routes.
- "Reed v. Castleton" (*): The court ruled that the dominant estate could improve an easement to ensure reasonable use.
Please consult a local attorney for guidance.
Please expand or explain read versus castleton * Court ruling about dominant state could improve an easement to ensure reasonable use?
In the "Reed v. Castleton" (*) case in Oregon:
- The court ruled that the owner of the dominant estate (property benefiting from the easement) could make reasonable improvements to the easement for its intended use.
- The improvements should not overly burden the servient estate (property granting the easement).
- The necessity and reasonableness of improvements are determined case-by-case.
- Please consult a local attorney for more specifics.
What are List all Oregon cases of easement regarding necessity and prescription focused on reasonable improvements?
In Oregon, cases on easements involving necessity, prescription, and reasonable improvements include:
- "Reed v. Castleton" (*): Dominant estate allowed to make reasonable improvements.
- "Webb v. Clodfelter" (*): Prescriptive easement established based on continued use.
- "Day v. Armstrong" (*): Upheld easement by necessity due to lack of other access.
- "Wiley v. Bunker" (*): Easement by necessity upheld due to landlocked property.

Please consult a local attorney for more specific details.
Define day versus Armstrong case, he's been by necessity due to lack of other access
The "Day v. Armstrong" (*) case in Oregon established that an easement by necessity could be granted if there was no other practical access to a property. The court considered factors such as the original property subdivision and the necessity at the time of the division. Consult a local attorney for specifics.
Define practical access to a property without reasonable improvements?
In Oregon, "practical access" to a property without reasonable improvements usually means the property can be reached safely and effectively in its current state. However, if access is hindered by factors like steep slopes or rough terrain, improvements may be deemed necessary.
What constitutes or defines reasonable improvements for non-existing access to adjacent steep sloped public road?
In Oregon, "reasonable improvements" for non-existing access to an adjacent steep-sloped public road might include:
- Creating a safe and usable driveway or path.
- Installing proper drainage to prevent erosion.
- Providing adequate paving for all-weather access.
- Ensuring the slope and curvature are safe for use.
Please consult a local attorney for specific advice.
What is a reasonable improvements cost range minimum and maximum?
In Oregon, the cost of reasonable improvements like constructing a driveway can vary widely based on several factors. These include the length and slope of the driveway, the type of materials used, and the need for additional work like drainage or retaining walls. It's recommended to get several professional estimates for a more accurate cost range.
Will a recorded easement in reserve survive a foreclosure merger doctrine upon a historical prior use, shared driveway between two adjoining properties that adjoin the same public road?
In Oregon, the survival of a recorded easement after a merger due to foreclosure can be complex. Factors considered might include:
- The terms of the foreclosure
- Whether the easement was extinguished by the merger
- If the easement is necessary for access, especially if there's no practical alternative.
It's often necessary to consult a local attorney to understand your specific situation better.
What is considered or defined as no practical alternative
In Oregon, "no practical alternative" typically refers to situations where there are no other feasible or reasonable options for access to a property. This could include scenarios where other access points are unsafe, severely inconvenient, or physically impossible due to factors like steep slopes or natural barriers. Please consult a local attorney for specific advice.
Does a lien on a property constitute fee simple?
In Oregon, a lien on a property does not constitute fee simple ownership. Fee simple is the highest form of property ownership, giving the owner absolute rights to the property. A lien, however, is a legal claim or encumbrance on a property due to unpaid debt, and it does not grant ownership rights.
Does an easement record of successors or heirs constitute future ownership rights?
In Oregon, an easement does not grant ownership rights. An easement is a non-possessory right to use a portion of another's property for specific purposes. It does not convey a right to possess, sell, or prevent others from using the land. The easement can be transferred to heirs or successors but only the usage rights, not ownership.
Does a successor or heir retain usage rights on an easement when granted to oneself by a recorded public record instrument?
In Oregon, if an easement is granted through a recorded public record instrument, the usage rights typically pass on to successors or heirs. However, these rights are specific to the easement's terms and do not confer ownership. Always consult a local attorney for specific advice.
I owned two separate properties adjacent to each other that shared one access to public Street. Then I lost the servant property through foreclosure and retained the dominant property. Will I lose the easement rights?
In Oregon, foreclosure can potentially extinguish an easement. However, if the easement is necessary for access and there's no practical alternative, it might be possible to argue its survival. This is a complex issue and it's advised to consult a local attorney.
What elements or conditions define or constitute a easement surviving by necessity through foreclosure?
In Oregon, an easement might survive foreclosure if:
- It's necessary for access to the dominant property
- There's no practical alternative for access
- The terms of the foreclosure don't extinguish it
- It's beneficial to the public or another property
Consult a local attorney for detailed advice.
Does the foreclosure have to address easement extinguishment? Or does it automatically extinguish easement?
In Oregon, foreclosure doesn't automatically extinguish an easement. It may depend on the terms of the foreclosure and whether the easement is necessary or beneficial to another property. It's advisable to consult a local attorney for detailed advice.
What terms depend on extinguishment through foreclosure of an easement?
In Oregon, terms that might lead to easement extinguishment through foreclosure could include:
- The foreclosure terms explicitly extinguishing the easement.
- The easement not being necessary for access.
- There being a practical alternative for access.
- The easement not being beneficial to another property.
For specific advice, please consult a local attorney.
Would the dominant owner or parties of an easement extinguished in foreclosure need to be notified?
In Oregon, if an easement is extinguished through foreclosure, there's no specific law requiring the dominant estate (benefiting from the easement) to be notified. However, principles of fairness and due process may imply a need for notification. Consult a local attorney for precise advice.
What are the implied principles of fairness and due process to notify?
In Oregon, principles of fairness and due process generally imply:
- Parties affected by a legal decision should be notified.
- They should have an opportunity to present their case.
- Decisions should be fair and unbiased.
- Legal procedures should be followed.
Please consult a local attorney for more specific advice.