Kevin Cloves' Legal Blog

Black’s Law Dictionary defines an easement as “A legal or equitable right acquired by the owner of one piece of land … to use another’s land for a special purpose, such as to drive through it to reach a road…an easement lasts forever, but it does not give the owner [of the easement] the right to sell or improve the land.”

Sometimes, people confuse easements with licenses. A license is merely permission for someone to do something on another’s land. A license does not give an interest in land to someone, but only the right to act is a specific way on another’s land. Licenses are typically revocable at anytime and need not be in writing to be effective. A good example of a license is ticket to a ball game whereby the ticket holder has a right to occupy a private premise for the purpose of attending a sporting event. The ticket holder’s right is not infinite regarding time, but is in place for the duration of the event only. Ever tried to enter a stadium when a game is not scheduled? It is likely that you would be chased away by security as you would have no right to be there.

A common example of an easement is the land, and airspace above it, upon which electrical power transmission lines are located. This is called a utility easement. Along with the right to erect such structures, the easement most likely grants the owner, in this case the power company, a right to ingress and egress (to come and go) and the right to construct and/or maintain the structure or equipment thereon.

Another type of easement is one in which a land owner has the right to pass over another’s land if the only way to gain access to a public road. This type of easement is known as an easement by necessity. That is, it is necessary for the easement to exist otherwise the easement owner’s land would have limited, if any, value since any purchaser would not be able to access the land.

There are two general types of easements, private and public. Private easements are generally enjoyed by a select few of individuals while public easements are available to, you guessed it, the public. There are two types of private easements, an easement in gross and an easement appurtenant. An easement in gross is a right that generally cannot be transferred, sold or transmitted by the owner of the easement and will, in most cases, terminate upon the death of that individual. An appurtenant easement, in contrast, is particular to a specific piece of land and is not vested in any one individual. An example of an easement appurtenant is a pipeline easement.

If you have questions about easements or need legal representation regarding asserting a right to an easement, it would be prudent to seek counsel regarding these issues rather than seeking self-help.

If you have ever been married, you know that tying the knot can be relatively inexpensive. That is, aside from a lavish ceremony and reception, a trip to the justice of the peace or your clergyman of choice is but a few dollars. However, if you have ever been divorced, you may know that untying the knot can be very expensive. Why is this so? Well, there are several reasons why and a few reasons that are the most likely culprits.

If the parties agree on a property split and visitation, the cost of a divorce is relatively minimal. It can be less if you do not employ an attorney, but be very careful here since there are traps for the unwary – that is a whole other blog. If you choose to hire a lawyer, your spouse will likely do the same to even the playing field, and rightfully so. Accordingly, the price of poker has just doubled.

For the average couple, those with house, retirement plans, two cars, 2.3 kids and $8k in unsecured credit card debt and a little savings, there is not much to fight about, except principle, which can get expensive quickly. Unless there are facts that might warrant an asset split other than 50/50, this should be a simple and straightforward divorce. However, this scenario is less likely the rule than the exception.

In most divorces, there is fault, of some sort and extent, to be had – s/he cheated, s/he has an alcohol/drug problem or mental issues, s/he has been abusive, etc. All of these situations create animosity, which morphs into principle, which equates into additional cost. Many is the time that I have heard; “this is going to be an ‘uncontested’ divorce.” Rarely has this actually been the case since principle lurks around every well-known corner waiting to spring out and drain the retainer.

Then there is the couple who fight over the shovel with a broken handle at mediation – true story! I’ll buy the shovel for Pete’s sake and throw it in for free! Geez! By the way, the entire divorce process went this way. The emotional capital spent by the parties and their lawyers was the size of the national debt. Watching this unfold was akin to standing atop a mountain watching two trains about to collide at the bottom – you can see it coming, but cannot do anything to stop it.

I try to counsel clients that even if the parties agree on most everything, there will always be something the parties never thought about to argue over – it’s just an outcropping of the reason divorce was chosen as an option in the first place. My counsel, if you are headed for divorce court and know it, try to keep communication open with the spouse, at least for the sake of the kiddos; and, at most, to keep the bloodletting in terms of capital (emotional and monetary) at a modest minimum – take it or leave it.

Potential creditors like mortgage lenders use risk based logic to determine the probability of default on a loan. Risk based logic can be based on several factors such as one’s credit score, employment (or lack thereof), type of property being purchased, borrower assets, down payment amount and the location and/or use of the property. Another risk factor is the quantity and quality of documentation provided the lender in the loan process. For a self-employed person, there may not be much documentation to verify income. As such, if the lender opts to give this type of borrower a loan, it may choose to offer a higher interest rate.

It has been postulated that lenders determine interest rates on the type of property being financed. For example, single family dwellings tend to have a higher price per square foot than a condominium or other type of multi-family dwelling. Based on this criterion, the lender may raise the borrowing rate higher to compensate for the lower price per square foot.

Probably the most relied upon data in calculating risk of default is one’s credit history or score – the higher the score, the lower the interest rate and vice versa.

On 60 Minutes this past Sunday, there was a discussion regarding the financial crisis. In that discussion, the “shadow” market was talked about. Evidently, this “shadow” market has been valued at approximately $50-$60 TRILLION, yes trillion with a “T.” This market is comprised of investments in sub-prime mortgages along with an even larger segment containing “credit default swaps.” Apparently, these swaps are the real culprits. These swaps are really insurance contracts (a risk savings derivative) that have been cleverly named swaps to avoid regulation. The swaps were to insure that, in the event of institution failure, the investors would be paid. Since these instruments were de-regulated, there was no adequate cash reserves required to pay off the claims that resulted from risky mortgage foreclosures in the sub-prime market. Evidently, these swaps were a Wall Street construct and were sold by the likes of Citi, Lehman Bros., AIG and Bear Stearns. Go Team!

Let’s point some fingers now. The swaps were created by Wall Street during a time of prosperity (per Steve Kroft of 60 minutes) and were intended to put lipstick on the pig. YES, I said it and I’m not referring to any political candidate. Wall Street turned an otherwise patently bad investment into one that was gold-plated (in concept only). Sold ‘em like hot cakes. I ask you, why would anyone invest in mortgages which could not be repaid? Well, because it was a sure thing, or so it was sold that way.

Now the bailout. We, the taxpayer (look at your latest pay stub for proof) are now on the hook for the “greed and incompetence” and “criminal neglect” of Wall Street. Gordon Grecko was not right after all – greed is not good. Yet, is it not one of the primary underpinnings of a free market society? Is fundamental capitalism in peril or did innovation in investment simply eclipse regulation, Mr. Secretary? Your words, not mine. So many questions. Anyone know a good lawyer?

A suit on account (Rule 185 of the Texas Rules) is a preferred cause of action pleaded when a creditor files suit against a debtor. If the plaintiff files a sworn account affidavit, the debt is self-proved absent a sworn denial. This means that the plaintiff can get a judgment on the pleadings alone and no additional evidence is required since the damages are liquidated. If the defendant fails to file a sworn denial of the account, the plaintiff cannot dispute the accuracy of the account later.

In the event the defendant produces an affidavit denying the account, the plaintiff must then produce evidence proving “the sale and delivery of merchandise or performance of services; that the amount of the account is just, agreed, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and, the amount remains unpaid.” In the event that there exists a contract, evidence of amount in controversy being reasonable or customary is not relevant.

Defenses to a claim based upon a suit on account include, but are not limited to; attack on the affidavit of the plaintiff, payment and the defense of stranger to the transaction. It should be noted that there are time limits associated with certain defenses; and, if not made timely, can be waived. It is always a good practice that, if you are sued on a claim of suit in account, you should consult a knowledgeable attorney as soon as practicable in order to preserve any time-sensitive defenses you may have.