An easement is a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. It may be more broadly described as a right for a property owner to use the land of another property. An easement which runs to benefit of the grantees and to their heirs will be construed as being perpetual in duration; however, an easement can be granted for a certain period of time, such as 10 years. There are two main categories of easements: appurtenant and in gross.

An easement appurtenant benefits a particular parcel of land, known as the dominant estate and burdens another parcel of land, known as the servient estate.  A conveyance of the dominant estate also passes the benefit of the easement, while a conveyance of the servient estate passes with it the burden thereof. Easements appurtenant are generally considered perpetual because they “run” with the land. 

The easement may be exclusive, benefiting only one party, or non-exclusive so it benefits several parties who have the right to use it in common. It is important to remember that the dominant estate owner may not use an appurtenant easement to benefit property other than the dominant estate. For example, if A, B, and C are owners of contiguous lots, and only A’s lot abuts a street, (and B’s and Cs’ lots are landlocked) an easement granted by A to B to pass over A’s lot for access to the street may not be extended to allow C to cross A’s lot without A’s consent. 

An easement in gross does not benefit any parcel in particular. This type of easement may indirectly benefit another parcel by enhancing its value and there is no dominant or servient estate. Easements in gross were originally held to be non-transferable but the modern view is that an easement in gross is transferable by the holder thereof. An example of an easement in gross is a right-of- way for high-tension power lines that cross over a property. The utility company would be the grantee of the easement and in most utility easement cases, the easement does not benefit a particular adjacent parcel owned by the utility company, therefore there is no benefitting party or dominant estate.

Creating an Easement

There are generally three ways to create an easement: grant or reservation, implication (including necessity), or prescription. The instrument creating the easement must be executed by the owner of the land which is to be burdened by the easement. If more than one person owns the land, all owners must sign, or the easement is invalid.

Easement by Grant or Reservation

An easement is created by grant or reservation through the use of a written instrument. The grantor may “grant” the easement to the grantee or the grantor may reserve an easement to the grantor in a deed of conveyance; however, a reservation may not be created in favor of a third party by attempting to “reserve” it in a deed of conveyance. Additionally, an easement may also be created by depiction on a filed map, notwithstanding the lack of a separate, written instrument establishing it.

Easement by Implication (Including Necessity)

An easement by implication arises by operation of law. It is created by judicial interpretation of the circumstances surrounding a conveyance of land. An easement by necessity is a form of easement by implication and is created when there has been unity of ownership and a subsequent separation of the parcel results in the grantor or grantee owning a landlocked parcel. The key to establishing an easement by necessity is the original common ownership. For an easement by necessity there is no requirement that one portion of the land has been used for the benefit of the other prior to severance. The four required elements to establish necessity are:

Easement by Prescription

 For example, if Owner A walks across Owner B’s land every day for a period of 20 years, despite Owner B’s demand that A stop, Owner A may have acquired a prescriptive easement over Owner B’s land. However, it is important to keep in mind that a license or permissive use cannot ripen into a prescriptive right. Therefore, if A had been granted permission by B to walk across B’s land, or if B tolerated A’s use of B’s land without protest, no easement is created. However, if the use continues for a sufficient period of time after permission is revoked, there could be a prescriptive easement.

Termination of Easements

An easement may be terminated or extinguished through written instrument, merger, terms of the instrument creating the easement, overburdening, abandonment, or estoppel. 

By Written Instrument/Merger:

A written instrument, such as a release or deed, given by the owner of the dominant estate to the owner of the servient estate will serve to extinguish an easement. In addition, an easement could terminate automatically by its own terms if it has a specific timeframe in it. A merger of the dominant and servient estates will also destroy an easement. Additionally, the holder of an interest senior to the easement may, under certain circumstances, be able to destroy it. 

By Abandonment:

An easement may also be terminated through abandonment; however, the mere non-use of the land is not unusually enough to establish an abandonment. The non-use must also be accompanied by other actions on the part of the holder of the easement, which the servient owner relied upon to his detriment. To verify the termination, one would obtain a Court Order or written agreement with the other party. 

By Overburdening:

Overburdening or misuse of an easement can also result in its destruction when a dominant estate subjects an easement to a use far beyond the original contemplation of the parties; however, it is only applicable in extreme cases. As a general rule, where the dominant estate is subdivided, an easement appurtenant insures to the benefit of each subdivided parcel. So, one should not generally assume that an easement has been destroyed by overburdening merely on account of the subdivision of the dominant estate.

By Estoppel:

If the owner of a dominant estate, by his or her words, action, or conduct, indicates that the easement is no longer needed or useful, and the owner of the servient estate relies thereon to his or her detriment, the dominant estate owner is prevented from later asserting the validity of the easement. For example, a dominant estate enjoys the benefit of a right-of-way easement over the servient estate. The owner of the dominant estate, John, is aware that the owner of the servient estate, Jan, intends to construct a building over the area affected by the easement; however, John does not object to Jan’s plans. After the construction of Jan’s building has been completed, John demands that Jan demolish the building because it obstructs the easement. Jan refuses on the grounds that John did not object before the building was constructed. Therefore, John could be estopped from enforcing the easement. A Court Order may be necessary to effectuate this formally. 

Unenforceable Easements

Certain easements are unenforceable because of the manner of their creation, or for other reasons. Some examples of easements that may be considered unenforceable are:

• easements not executed by all owners of the property at the time of creation
• easements not properly recorded or indexed in the chain of title; and
• unrecorded easements. 

When buying property, it's important to be aware of any liens that may be attached to it. A lien is a legal claim on a property, usually as a result of an unpaid debt or obligation. Liens can affect a home buyer's interest in a property and can cause financial and legal issues if not properly addressed prior to purchasing the property.

Liens can be placed on a property for a variety of reasons, such as unpaid child support, Medicaid bills, Public Defender bills, or even the judgment resulting from court proceedings. When a lien is placed on a property it becomes encumbered, meaning there is a right to, or interest in, land held by a person other than the fee owner, or a claim, lien, charge or liability attached to and binding real property. At the state level, liens are filed with the Superior Court of New Jersey.

A judgment of the Superior Court becomes a lien upon all of the lands of the debtor (or defendant) in the State of New Jersey, from the time of its entry upon the Superior Court Clerk’s Civil Judgment and Order Docket. This includes final judgments for a fixed amount of money, whether entered into the Law or Chancery Divisions. The lien is purely statutory in nature. An abstract of the judgment must be submitted to the Superior Court Clerk together with the requisite filing fee in order to create the lien (entry upon the minute book of the court clerk of the local county is insufficient). If the judgment abstract is filed in the local county but not submitted to the Superior Court Clerk (with the requisite filing fee) then the lien was never created.

 Judgments entered into the US District Court for the District of New Jersey are treated like judgments entered in the Superior Court of New Jersey. The same applies to judgments entered into the US District Courts of other states as the judgment may be docketed with in the US District Court for the District of New Jersey due to the Uniform Enforcement of Foreign Judgments Act. **In order to discharge the judgment, a Warrant of Satisfaction must be filed with the state. **

Institutional Liens are statutory liens created to enforce the financial obligations of persons suffering from mental or other illnesses who receive treatment at state or county medical facilities. Due to N.J.S.A. 30:4-27.2, state or county owned psychiatric hospitals are no longer allowed to file new liens (and their previously filed liens from before the date of the statute have been extinguished); however, hospitals that are not government-owned, but which receive State subsidies to provide psychiatric or non-psychiatric treatment  can file certificates of debt with the CJ&OD or may choose to reinforce the claim by filing an action in Superior Court in order to reduce the claim to judgment.

Medicaid Liens arise from a program, jointly administered by federal and state governments which provides medical assistance to the needy. As services provided to eligible recipients have proved to be quite expensive imposing  a heavy burden on both federal and state budgets, government agencies have become increasingly aggressive in their efforts to recover funds expended on behalf of Medicaid recipients. To do so they frequently rely on the asset transfer penalty allowing for recovery against real or personal property. A statute provides for the imposition of a lien on the “estate of a deceased recipient” however, if a “deceased recipient” is survived by a spouse or child (under age 21 or disabled), “no encumbrance or recovery shall be imposed or sought” against the until the surviving spouse dies or the child reaches age 21. Furthermore, the Medicaid lien only becomes effective as of the date it is filed with the court.

Public Defender Liens are from the reasonable value of the services rendered to a defendant by a Public Defender. When unpaid, the Public Defender may file a lien on any and all property to which the defendant shall have or acquire an interest. To effectuate such a lien, the Public Defender must file a notice setting forth the services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The date of filing is the date the lien becomes effective and therefore becomes a lien on said property for 10 years, unless discharged sooner. ***UPDATE***

Real Property generally should not be sold or transferred without satisfying open liens. This means that the seller must pay off  any open liens and file the appropriate documents before transferring ownership to the buyer. A good title company will do extensive research on the property being sold to ensure that there are not open liens that may affect the buyer’s ownership of the property.

For residential home buyers purchasing an Owner’s Title Policy, there is an option to purchase a policy with standard coverage or a policy with enhanced coverage. The Enhanced Owner’s policy, also known by Stewart and Fidelity as the Homeowner’s Policy and by First American as the Eagle Owner’s Policy, offers additional coverage for buyers of residential property. Keep in mind that the Enhanced policy can only be issued to a natural person or the trustee of a Trust on residential 1-4 family completed structures. Unfortunately, it cannot be issued to any type of corporation or organization and cannot be issued on vacant land or any other land classification other than residential.

 The Enhanced Owner’s policy includes all of the protections provided under the standard ALTA policy plus additional protections and benefits. The additional covered risks for the Insured include mechanics liens that belong to someone else, unrecorded liens by a homeowner’s association, false impersonation of the true owner of the property, forged deeds, releases or wills, undisclosed or missing heirs, instruments executed under invalid or expired Power of Attorney, mistakes in recording legal documents, deeds by minors, deeds by persons supposedly single but in fact married, liens for unpaid estate, inheritance, income or gift taxes, and fraud, and several other additional benefits explained below:

The Enhanced Policy's Additional Benefits

The Enhanced policy protects homeowners against claims arising both before and after the policy date. The Homeowner is covered if someone else has an interest in or claims to have rights affecting the title or if the title is defective. Post-Policy protection includes coverage for forgery, easements by prescription, encroachments built by neighbors after the policy date and adverse possession.

Expanded Access Coverage

The Standard Owner’s Policy does not define the type of access a homeowner has to the property but the Enhanced policy specifically insures both actual pedestrian and vehicular access, based upon a legal right. 

When purchasing property, the manner in which title is vested is an important decision which sets a plan for what happens to each owner's interest in the property when they pass. 

When more than one buyer is involved in purchasing property, how they take title is an important discussion to have. When two or more buyers take title together, it is a co-tenancy; however, there are different main options for co-tenancies and whichever option is chosen determines the future of each owner's share of the property. 

The most common ways to take title are: 

A fraudster's income is largely based on defrauding innocent individuals, so like most other careers, the more proficient they become at their "job", the more they earn. Real estate transactions are a huge target because it means a bigger pay day. This is simply a reminder that they are working relentlessly to defraud individuals because their livelihood relies on it. 

Individuals can pay for and implement many forms of cybersecurity defenses such as security software and email spam filters; however, phishing and spoofed emails often get past the defenses and make it to the Inbox. Therefore, it is each person's job to be alert for suspicious activity to keep from becoming the scammer's next victim. 

Spoofed Emails in Real Estate Transactions

In real estate transactions, scammers use phishing emails to compromise an email account of someone involved in a deal to gain access to that person's emails. Once they have access, they can read all of the emails related to the transaction and learn specific details that only those included in the emails would know (i.e. loan amount, closing date, funds needed to close, other parties involved in the transaction, etc.). Next, they will try to impersonate someone in the email thread by creating a similar email address or by forging the "email from" address. This is a process known as spoofing. Spoofed emails are emails from scammers that are made to appear like they are coming from a real person. 

Spoofed emails are more challenging to spot because the messages look like they are actually coming from a known, trusted party. In real estate transactions, scammers will use transaction specific information gained from studying prior emails, to craft spoofed emails that are difficult to identify. When scammers choose who, within the transaction, they want to impersonate, they will study the prior emails written by that person and note any key words and phrases often used. Then, when crafting a spoofed email, they use those same key words and phrases, along with transaction specific details and will even copy that person's email signature to make it seem more legitimate. The scammer's ultimate goal, when sending spoofed emails, is to send fake wire instructions so funds are sent to their account, instead of the account of whomever is handling the settlement. 

When reading about real estate wire fraud victims, many of them have said they had sent a few emails, back and forth with the scammer spoofing emails before receiving fake wire instructions, and they had no idea they were not communicating with the actual person. This is a clear indication that scammers are skilled at spoofing emails and impersonating people. Hence, learning to identify spoofed emails is critical for preventing wire fraud. 

The following are some examples of how you can identify a spoofed email. 

1. Look at the sender's actual email address.

When sending their spoofed emails, scammers often create an email address that is similar to the person they are trying to impersonate by changing a few characters, or using a different domain extensions (such as “.net” or “.org” instead of “.com”) to trick users into thinking the email has come from a friend, colleague, vendor, client or other known party . They may even create a new email account at a public domain (i.e. Gmail, AOL, etc.) by copying the person's full email address (domain and extension included) to make it appear legitimate. The unsuspecting user won't see any spelling errors in the email address and may overlook the domain. Additionally, scammers often add a Display Name to their email which distracts the user from their spoofed email address. 

As of March 2022, the State of New Jersey updated the RTF-1 & RTF-1EE Forms, otherwise know as the Affidavit of Consideration for Use by Seller and the Affidavit of Consideration for Use by Buyer. As stated in both new forms, transfers of real property that are intercompany transfers between combined group members filing a New Jersey combined return as part of the unitary business of the combined group are exempt from the grantor and grantee fees.