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Easements 101: Types, Purpose, Rights and Impact on Land Use Applications

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Easements 101: Types, Purpose, Rights and Impact on Land Use Applications

Easements play an important role in modern property law, granting certain non-possessory rights to individuals and entities over land they do not own. This course provides an overview of easements, exploring their nature, creation, enforcement, and termination. In particular, this course will focus on the impact of easements on land use applications, such as for site plan review or zoning variance. Participants will gain an understanding of the legal principles governing easements, along with insights into emerging trends in easements in regard to property law, with emphasis remaining on their effect on land use applications filed with local and county planning and zoning boards. This course is designed for attorneys and legal professionals seeking to improve their understanding of easement law.

Transcript

Hello, this is Peter Lupo from Hoplite Communications. We're going to do a little bit of an update on easements. We'll call it easements 101. So my law practice primarily focuses on public rights, way things to do with easements. Mostly we deal with telecommunications law as it relates to the easements as well as with public rights of way. So we have quite a bit of experience with representing two counties in New Jersey in about 50 minutes of penalties. So hopefully some of what we've learned will be illuminating with respect to your practice. Let's go over some of the topics to be covered today. So we'll get into our introduction to easements, the types of easements we have, how are easements formed and what exactly do easements look like specifically here is physically, what do they look like? And again, a little bit about locating easements. How do you go ahead and do a search, some of the basics and resources? We'll talk a little bit about impacts of easements on land use applications. We'll evaluate the easement impact. We'll get into a little bit of a case study involving Altus Power, which is a cellular sorry, I should say, a solar company that looks to provide power to individual tenants, but it also recharges the existing grid of excess power that's actually being used for the billing tenant. And then we'll head over to the conclusions and takeaways. Let's do a little bit about easement basics. So what exactly is the easement? Everyone went to law school here. Everyone took contract law. I It gets a required class for everybody. It's a nonpossessory interest in real property. It gives the easement holder rights to use property not owned or otherwise possessed. So think you have an opportunity to use someone else's property and you have no real ownership. Generally it runs with the land. Something that goes from owner to owner attaches to the land. And then statute of frauds applies. And in New Jersey specifically, here is a reference for the statute of frauds in writing an insufficient description of land. That's a requirement. That's what the statute of frauds, unless it's an implied easement. And we'll get dive into that in a little bit later on. But generally speaking, it has to be in writing. You have to have sufficient description of the land itself lot and block number metes and bounds and the area impacted. So let's do a little bit of an analogy here. Imagine someone drives in boyfriend and girlfriend, drives into work all day. The girlfriend owns a car. And she complained. She said, you know, I want to drive. And the boyfriend says, no. And then she says, But this is my car. He says, Doesn't matter. I have an easement to use it to drive to work every morning. And then she says, Well, you know what? I'm sick of this. I'm going to sell it. He says, Well, you know what? You can do that. You're not going to spite me. You're not going to get much out of it because my my ownership, my right to use this car attaches with it and runs with the land. So I get to use it even if you sell it. A little bit of a facetious analogy, you understand, of course, the car is not land, but I think it really makes a bit of an illustration about the rights and obligations of each party. Let's go over the primary types of easements. So we have an easement in gross. This may sound a little familiar. It's usually a third party. Typically a utility company doesn't have to be, but it's usually a third party that doesn't actually use it in a traditional way, walking on it. Something is resting on it. Typically going to be a power line or the like. And then think easement appurtenant. That would be something where it's directly connected to the immediate lot next door. So think of example as somebody who's landlocked and needs to walk across the other lot just to give two different types of estates create out of it. The Servient estate is the parcel that's impacted and allows the other party, which is known as the dominant estate, to use that parcel of land. So obviously dominant would be the one that benefits from having the easement. That's the one who's got a non possessory use in other parts of the parcel of land. The serving estate is the person who's impacted by it. Two different types of easements. One is express, the other is implied. One Express is to be written implied, not so much. Now, obviously, recommendation for your clients, if they're going to do an easement, always do. Express implied up to interpretation. You have to prove it in court. Well constructed express written one easy to prove Implied. Not so much. So let's do a little example over here. I like this donut. Imagine, for example, that this donut was just one circle and there was a hole in the middle. The owner of the donut that had no no hole in the middle says, you know what, I want to subdivide this this parcel. And I could get a lot of money if I go ahead and just subdivide it out and take a chunk out. And then that that whole donut hole is the. Extra state. So you have a common owner, you have a donut, and he carves out this little donut hole and he goes ahead and sells it. Now, that person in the middle, he's completely surrounded. He's got no way of getting out to the street. He's got no way of walking out, no way of people delivering to him. Et cetera. You can imagine his first dilemma. This over here would be an easement by necessity. So in the absence of an express written easement, allowing the middle person the dominant estate from traversing the land, you could go ahead and call an easement by necessity. Bad way of doing it because then you have to fight in court. You have to argue it. Court expenses, obviously, again, a written express easement, the better way of doing it. But this would be a good example of an easement by necessity. In this case, it would be a shared owner for the beginning. Subdivided parcel in this case would be the donut hole and creating a necessary situation for the person. Now, the donut hole is a dominant estate. That's the one who owns a nonpossessory interest in the donut itself. And that person, as mentioned before, is deserving an estate. So let's go over affirmative versus negative types of easements. One allows you to do something. The other one's a restriction on the use of the land. Just very broadly speaking. So imagine an affirmative loan would be a driveway for use by ingress and egress. That's kind of self-explanatory. A negative one might be somebody putting on a restriction on the height of a building you could build. And I'm going to go ahead and give a little bit of an example of that resembles laws that restrict activity related to zoning regulations. So they have the effect of a zoning regulation if it's something that's put into the deed itself, but obviously not a zoning regulation, but it looks like one or it acts like one. So let's take a look at this example right here. Let's go ahead and look at this situation. Imagine that the House at the very, very top, the one with the gabled roofs over here, was the owner of all of this land at one point and decides he wants to subdivide. Okay. You know what? I could go ahead, subdivide the slot and get a lot of money for it. But let's say, for example, he knew that the lower part of this mountain over here was allowed for three and four family homes and that they could go up to 100. They could go up to 100ft, 150ft or the like. And he anticipates that that might be an impact on his view. So he's on top of the mountain over here. And you have a view of New York City, for example, this is Summit, New Jersey, where you have views of Manhattan or where they have a view of a valley or whatever it is. So he goes ahead and he sells each one of these lots subdivides It sells each one of these lots and says in the in the deed itself or a separate standalone easement. But typically it would probably be in the deed embedded in the deed, it says that it should be restricted to say, for example, you know, two stories or 20ft or whatever it is that would would restrict these other parcels from building above a certain thing to prevent him from blocking his view. So that would be called a negative easement in the case of a height restriction for lower lying homes. Okay. Thank you, Peter. Okay. I wanted to come in and comment a little more on this particular situation. As Peter mentioned, we have a negative easement. Essentially, we have the the parcel owner originally was one large parcel and it was subdivided, as we know. And you have the higher lying parcels and the lower lying parcels and. The after the subdivision. You know, the the owner got to sell the lower lying parcels to. Some of the further developers, you know, people who go further, you know, build their own, you know, build stores, build buildings and so on. We wanted to maintain that view. So he made a covenant and he made an he made it reserved an easement when conveying these properties. They were conveyed with the deeds with an easement that that none of the heights could be above 50ft. And therefore you have these parcels, you know, and very valuable real estate in New Jersey. So, you know, the value of the parcel is clearly affected by this. But the the owner who subdivided the original parent owner just thought it was so important to maintain the view for the for the parcels that are higher up on this hillside here is the Palisades basically along the Hudson River. So there's a really, really nice scenic view and. And he just didn't want it dashed by just overdevelopment on the on the lower lying properties. Now, the interesting thing is you go further down, you know, there's a bit more now it steps down a bit further to Palisades. You know, it varies in its geography, but around here you go down further and then, you know, he doesn't have any control. Then it's up to land use boards and zoning regulations. But for the one that is. The one that is right there. The one that he owned once before. He can do his best to preserve it, to preserve the view and the higher property for the future owners himself. Any future owners. So that's a negative easement and it's a height restriction and it can agree with it, can concur with or it can conflict with underlying land use regulations. That's something you determine as part of your due diligence. And and then you move onward. You know, your project goes forward. You know, everyone buys the property knowing full well they're getting a beautiful property with a nice view. They're not building a skyscraper there. They're not building a high rise. It's going to stay low lying. Keep that in mind. You know, any any prospective purchaser would come across that when he does his title search and his due diligence, you know, if it's done right, he will come across this information and and that will affect the determinations of future purchasers of the low lying property. And it will protect, to some degree, the viewshed of the higher lying properties. Giving it back to Peter. So how easy was formed? How do you create these? These types of documents so you can have an easement Grant can be titled A deed of easement can be an indenture or just an easement itself. It's written typically recorded. Easement document. So it's a standalone document itself. I'd probably say up there an easement, a grant of easement. Again, if you want to be really careful with your client, you want this to be written, you want it to be well constructed, you want to have them meet some description and you want to identify the area on the parcel that would be impacted by it. So you have no, no, no question. If it has to go to a lawsuit or any other other parties of the area to be impacted. You have indeed, as I mentioned before, with the example of that person on top of the mound, that put a restrictive deed, restricted covenant inside the deed or restrictive easement. It could be formed inside a deed. So it might have conveyance, document and embedded there, it might list that type of restriction or in the case of a driver, be an affirmative right to use the property. That'd be another way of doing it. Again, written clearly with a with with a clearly described metes and bounds in the area to be impacted. Another way could be testamentary documents. Think of the last will and testament that could include an easement reservation in the will property. It could be any number of ways that could be thought of, but that's another way of doing it. A contract. So something that we deal with very frequently here at Hoplite Communications. You'll hear from my business partner shortly afterwards on this, but you'll see lease agreements. And typically with a telecommunications lease agreement, they could be 20, 25, 30 years, very, very lengthy types of documents. Imagine a tower going up, a monopole or self-support or going up a property. They would need to bring utilities in. And they they almost always have a provision that they could have an easement and require the lessor or the landlord to go ahead and sign off on easement documents. They also would record the lease itself. They do a memorandum of lease and recorded in the appropriate county level clerk's office. Now the contracts will have that and will specify the areas to be used by the easement, but that's another place that easement can be formed. Think eminent domain is another one. Government takes easement before a fee simple title when possible, so they always try to do the least impact on the land. So eminent domain is the last the last resort. In order to do what they need to do, court orders, decrees, think implied versus express easements where you don't have something clearly written. So if you have an implied easement by necessity, that may have to go to court. But once they have that, it may mandate that an easement be formed in order to memorialize something like an implied easement or easement by necessity and last prescriptive easement. Again, something has to be proven. There are many different prongs. There may be a number of different defenses, but if you recall from law school in New Jersey, you need to have a certain period of time, 20 years, that bids open notorious usage of a portion of the property and litigation, if it's contested, would have to be completed and favorably for the plaintiff in order to confirm its existence. Any fan of here at Bugs Bunny, you'll recognize this. That little chimney in the middle is Bugs Bunny's rabbit hole. Now, he was very stubborn. You know, we had he was approached to go ahead and get an easement, you know, to go ahead and pass through his rabbit hole or to relocate. He was offered money, but being Bugs Bunny was kind of stubborn. He's kind of mischievous. He refused. And imagine where there was no eminent domain. You'd have this crazy little situation here where you'd have to have this big horseshoe around the bunny rabbit hole. And as you see here, it's kind of messy. It slows down traffic and looks pretty unsightly. So let's take a look at a deed of easement. So this is again, a standalone document. The name of the document is not important. They call it indenture. They can call it a deed of easement. They can call any number of things. But most really makes a difference is the phrasing. And I have highlighted some of the important provisions. You have the from the to in this case, it's a railroad company. That's the grantee here. That's going to be the servient, the dominant estate in this situation. And then the Mr. Silas Seehase and his wife will be the Servient estate. And it tells you over here that they're going to construct a railroad between different parties, and it tells you the purpose very important, especially with this easement appurtenant to give you the use of it. So for the location, construction and use of the railroad of said company, see a highlight over here and then it gives you that shall not exceed 50ft on either side. So a total of 100ft. So we now know that that their use of the property is for railroad use. So let's, you know, what types of things they could go ahead and do to improve the property for their uses so they couldn't go ahead and start opening a hot dog stand there, for example, or any other things because it's restricted to the types of uses that spelled out here and the amount of area that to be used, which is also described here. So it gives you it's probably a deed, an exhibit over here, which would describe the area impacted by it. So let's give an example of a contract here. As I mentioned before, call it one of the major carriers say it's AT&T. It says that they have to create an exclusive easement for utilities, for usually cabling fiber, electric power and the like, if required by any third party provider. The landlord agrees to execute a separate recordable document or other reasonable documentation evidencing such rights without the payment of additional consideration. So here it sets up the obligation of the landlord to sign off on an easement for those uses of telecommunication use. Specifically might be gas for a backup generator, electric to power site fiber to run the network itself. So let's go over grantor and grantee rights. What can an easement hold to do so? An easement can do whatever is reasonably convenient or necessary to fully enjoy the purpose of the easement. They can modify the property in connection with enjoying the easement. So let's talk, for example, a railroad. They might be able to do some demolition. They could bring in earthmoving equipment to grade properly so they could put the railroads. Railroads have to be usually on a 2 or 3 degree radiant gradient in order to properly function. So too steep would be very difficult to control or to stop. So it has to be on a very kind of strict, easy gradient so they can come in and start putting in some fill, maybe do some demolition. It might be some substantial engineering order to make it happen, but that would be something as messy, as noisy as that of being. That might be something that would be necessary to enjoy the easement purposes. So again, the modification does not unduly burden the landowner might have to cooperate with them in some way not to unduly burden their land owner for their use, and it doesn't expand the easement beyond its intended scope. It has to be limited to what it was. As I mentioned before, if you have a railroad easement put on railroad tracks and fill and ties, maybe a catenary device would be something sufficient. But to go beyond their intended scope, that would not be permitted. What can the underlying landowner do? So they still own the land? They still fee owners of it. But as I mentioned before, they are impacted by the use of the easements that egregium. So they get to do anything that would not unduly interfere with the easement holders use of those easement so they can cross on and over the easement area via the restrictions against doing so. In the case of a railroad, they may have a restriction by crossing over if or maybe OSHA reasons or health and safety reasons, but generally speaking, they could do that. If you had an underground pipeline that had electric or gas potentially could build a fence over it. As long as you're not going to rupture the fence, if it's just going over it, a fence would be something that would be something that would be okay, something determined on a case by case basis, something where there's a little common sense. So how do you do an easement termination? So merger of title. Let's assume that donut example I gave earlier where the dominant serving estates merger approved by planning board and memorialized with a deed. So the instance where you gave before was by necessity. They were appurtenant easements that were next door to each other. If that merged together, the little donut hole and the donut itself, you would find that there'd be no longer a need for it. So you have a merger of title and the need for that easement necessity would be gone. Let's assume a release thing. For example, a servient estates as every time he crosses through the land, my dog barks, wakes up around the house. It's really annoying. He approaches a dominance and says, You know what? Donut home is your donut hole. I'll pay you $50,000. I just can't stand having you cross over here anymore. Obviously, in that case would be very difficult because there'd be no way of getting out. But assuming the person didn't care or didn't use it. So I'll take the $50,000. I'm fine with that. That would be a way of releasing it. Think vacation. Think abandonment where someone no longer uses it anymore. The intended purpose is gone. It's over with. Think of some examples where you know it's just not being used anymore. Think, for example. If you have intention to, to go ahead and abandon a property, it doesn't extinguish other easement holders. And the reason why it doesn't extinguish other easement holders is because they still have legitimate use. So even if one person vacates or abandons their use, anyone else is still still using that continually using it, still have a right to use it no matter what document terms it might be for a finite period of time. Think, for example, where you have a construction site and they say that it shall be used for 90 days and then that 90 day period is over. They may lose their document, may lose their easement to the construction area. They will lose it. Termination purpose. Think a lake drained, no need for boat ingress and egress anymore or a building is demolished. You don't need either a driveway because the building is no longer there and that termination of purpose is gone. Last is eminent domain. The state needs to build a highway. You have estates and easements that swept away by this type of large scale condemnation. Condemnation or appropriation would be the kinds of examples for it. Okay. Thank you, Peter. Okay. Yeah. These are we just touching on ways, easements of forms, the different types and took a bit of a of a detour in how you terminate them. This all ties in basically they're all ties into the larger picture we went through the various ways you can terminate easements. You can two parcels can merge know let's say you have we keep using we use the driveway example before we use the doughnut example. And so let's say they come back together and you knock down both smaller houses and you build like a larger, a larger house, then you no longer need an easement. So just by lack of any more need for it, they're extinguished. And these are some more examples just to build upon the what Peter had mentioned. You know, basically the the example of the of the owner just getting tired of hearing his dog go crazy every time someone pass through to go to work in the morning, you know, we can do it like that. You can say, hey, here's a here's a certain amount of money you know, or you could you could you could do various things like that. And we talked about towns, vacation, abandonment, essentially a town along a needs a street, you know, a whole thing is going to be turned into a state highway nearby and the nearby homes are going to be all condemned and taken away. And then the town street that ran along those homes is no longer necessary because the state highway doesn't touch them. You can have that circumstance. So therefore, the town vacates it. Usually municipal governments, county states, federal government. The underlying intention is they're not supposed to take and hold, but they don't need, you know, you either give it back to the underlying owners, auction it off. You know, they bid it out, whatever you call it. If the if a of a jurisdiction does not need a particular parcel or a particular easement or whatever it is, they usually best thing to do. And if it's an easement, it's real easy because you just go to the underlying grant landowner. You say, Oh, it's yours now it's extinguished. But as Peter mentioned, it doesn't automatically extinguish all the easements that might run along a right of way. A street. You could have a utility company and they might be as quick to to to vacate their easement and give it back to the underlying owners. They may they may keep their lines there and, you know, kind of keep it as it is. So the town gives it back. But because the the utility company, the underlying landowner, can't do much with it. And then like we mentioned, termination of purpose to two parcels merge, a lake is drained. You no longer need the egress. You need no longer to go to the lake to run your boat because there's no lake there anymore. Termination of purpose. And then finally, we mentioned eminent domain. That's the one where the state or the government or any form of government town takes what it needs. But it does it by the least. The least intrusive means possible. It goes easement when possible, go for estate. Any way you look at it can sweep away what's there. So you have a bunch of easements for sidewalks, whatever the big highways coming through, they're all they're all gone. So that would terminate them as well. Back to Peter. So what do we look like in a physical space? So let's take a look at this here in the right hand side, just for you to kind of peruse, is a grant of easement. But really, the purpose of this slide is to gaslight on the left here. This is where, of course, from my building you see over here that the local public service company went out there and marked out the streets. They marked out the little yellow lines in the street, continued on the grass with the yellow flags. And then again in the background, you see the asphalt, more yellow lines over there, which leads up to a meter pan over there of gas mains. It's where it comes up and that's how they go ahead and charge the individual tenants based on their individual consumption. And that's what an easement would look like in this case. There would be an easement in favor of public service, electric and gas company. Let's take a. Look over here. You see easement holder can set needed. So this is where the if you want to do anything kind of over the easement area, we need their permission and distinguishes the easement from lease and for ownership. So easements generally permanent until expanded leases have termination dates on them, leases have rent and easements may may be a one time fee, something to keep in mind. But you see over here, left hand side utility poles, it's a good example of a aerial run rather than subterranean, as with the gas example in the earlier slide. So go ahead and talk a bit about locating easements. Much Paul Row of Hoplite Communications. And I'm just going to take over for a little bit. Okay. Locating easement basics. So when you're trying to let's say you're working a project on a property or you're doing something like that, very often you want to know where where are the where are the easements, what's affecting the property, what are the profits of pranava? What are the covenants and restrictions? What are the zoning, the land use regulations, the licenses, the state, this, that or the other thing? But easements are a substantial portion of that of those land use restrictions. And you got to take some steps to find them. If you're doing a small or large project and you might look at the title report, you might order a title report, you might order a survey and ask the surveyor to call out the the easements, you know, to get a good idea of them. Surveyors are not perfect. They usually get the municipal ones and the and the public utility ones usually pretty spot on with those. And then the title report, depending on the title company can go pretty deep into it and come back with a whole bunch of documents of record. And a lot of them will be easements affecting the parcel of concern. And you have filed maps often townships have filed maps for site plans and subdivisions, and a lot of easements are called out on these documents. You'll have like a you may have a large subdivision for a hundred townhouses and they'll have like an easement reserve to the county for drainage and to the town for for a water line or a sewage line. And then maybe the utilities for their lines. These file maps can be very helpful in finding easements. And, you know, you can kind of do your research and do it to the best of your ability. You can push back on the on the other party you're working with, anyone else, for that matter. And here's a little further detailed breakdown of locating easements, a bit more of a of a summary you got. We mentioned before land records title report has things like deeds and dentures, standalone easements. And the survey, if it's done well, will often call out, as we mentioned, the the public utility easements, municipal ones, and occasionally they'll get one from a neighboring parcel and the file maps, site plan, subdivision tax maps, sometimes even have them thrown in there, engineering maps and so on. And then you have some additional documents that may or may not be of the public record, such as contracts. A lot of times the property owner will enter into a contract with an adjacent property owner or a or a large corporation or the township or the county. And in the contract, they could call out easements, you know, call out such and such as reserve to such and such and things like that. And you have actual permit documents. A lot of times a zoning permit will reference an easement and say such and such approval is granted, subject to the rights and reservations retained by such and such easement holder. So if you have a permit on your on your desk, you never know. It could have something. Basically, title reports and surveys are the best bet, but a whole bunch of other means too. Even zoning and planning resolutions can call them out court records. They can be anywhere. So kind of focusing on how they're formed, what they're made of, you know, how they can be terminated. Now, we did really a lot of these projects that we're dealing with in this in this practice here involve finding them. So we did want to take a little time to explore some of the best ways to find them. Okay. You can mention surveys. A good survey is a wellspring of information on existing easements affecting a parcel or several parcels. In this case, we have a residential property, a two storey townhouse, as you see there. We mentioned townhouses before. A lot of developments of those in the state of New Jersey. And elsewhere, for that matter. And basically, this this particular survey calls out a seven foot wide sidewalk easement and a sanitary sewer easement. Both are in favor of the town that this this property is situated in. And one, you know, the sidewalk allows the public to come and go. And the sanitary sewer. Of course, modern plumbing is a necessity of the 20th and 21st centuries. He mentioned Tyler reports. Here's an example from schedule. Exceptions from coverage for Tyler Report. They usually come back with these big reports. You know the pain of total. You'll have like the deeds and you'll have mortgages, you'll have UCC filings and all this other stuff. But the exception page very often calls out easements saying such and such coverage is not extend to anything contained in such and such an easement. And there you have it. Deed Book 4007, Page 542. And if the project is extensive enough, you probably want to look up every easement that you come across because it could have something. Someone down the line is going to surface and cause problems. Okay. So we took from the beginning, looked at the different types of easements, how they're formed, how they're terminated, how to find them. In this particular case, this presentation is probably evident where we're not this particular presentation. The special wrinkle of this presentation is we're not particularly focused on negotiating and drafting easements here. Looking at the typical classes, there's, you know, for what it's worth, a boatload of Cle classes on how to negotiate and form easements, more about what are they about, how do you find them, how do you determine their impacts and what do you do when you find them? And one of the typical things that we recommend, whether it's for a private landowner, for one of our public clients, we represent a lot of municipalities. So in this particular slide, we're speaking of municipalities, but it applies to anyone really. Essentially you're doing a project, you're like building a new garage on your property, and it turns out there's an easement that might get in the way if there's any doubt at all, unfortunate and unpleasant as it may be, your best bet is to reach out to the easement holder and get written consent from them. It could be in the form of a recordable grant, recordable consent, or it could just be something that's not recorded. It could be a letter agreement, something like that. You can also do things like hold harmless letters. Things along those lines that can further check on the easements impact to see just how it affects whatever's happening, whatever you're trying to do. Maybe you just want to just hang out in your backyard, you know, a beautiful summer and you know, you're afraid of, like, all these, like, utility easements crossing and this and that, and your dog's running around, and you're not quite sure Where is my dog going to do anything wrong here? You know, so just basically these every pretty much every parcel in New Jersey is to some extent encumbered by these these rights of way grants, easements and so on with the utility, neighboring property owner and the like. Okay. So what we're just touching on that actually, and the next slide leads us right into it. Who are the typical parties that hold easements? Very often it will be a neighboring parcel has to cross over just to use your the front of your property to get to the main road, you know, egress, ingress, easement, public utilities, some of the most common easements out there. You know, they record hundreds of thousands of them. You know, if they're doing a new run down, a particular right of way or a particular street will contact every single landowner and have them sign off on those typically one page template documents where they just fill in the name of the owner, blah, blah, blah. And then they just usually record them. So tens of thousands of them. And then sometimes you have easements granted through municipalities. We just saw in the survey for sidewalks and pipelines and things like that. And then finally, the larger branches of government such as state, counties and federal government also, very often these are what we touched on earlier. The category negative easements, often like conservation easements, things you can't do, basically a conservation easement granted to a land trust or county for like the back part of your lot because it's near a river or something like that, You're like, okay, conservation easement. Granted, the Land Trust gives you $50,000. You sign off to record it and you promise the easement is now held by the trust and the landowner cannot develop on there just to keep it in its natural state. Okay. So we were determining the impact before. We're going to continue on that thread. Determine the purpose of them egress, drainage, conservation, what restrictions they have, how long they last, you know, so sometimes construction easements can be very temporary, whereas others, you know, like access easements for a landlocked parcel, as we saw in the donut example, that that can be indefinite, that could run until the thing is the parcels emerge or something happens that makes the easement no longer necessary. Okay, now we're looking at where you go. Like the heart and soul of an easement is in the Habendum clause. Basically, this is a recorded easement, public document of record, not an implied one. That's an understanding or one by necessity, where a subdivided parcel that's landlocked has an easement by necessity to pass through the the adjoining parcel that acts as a road or a point of exit. In this particular case, we're looking at how do you find out? What's the purpose? What's the extent? How long is it going to last? And typically that's in the habendum clause. It kind of ties it all together. And the Habendum clause is identified by the phrase to have and to hold. And then basically you see the party of the second part. It's the easement holder and you see the two there uses as aforesaid. You see this land document and you see the term use. And it's a bit of a giveaway that we're looking at an easement and not a fee conveyance or a fee. Simple title conveyance. The term use purpose, things like that. And they have the right of immediate entry. Et cetera. Et cetera. And then construction and maintenance of a railroad. Basically, we have a dug up some old railroad deeds from from the 19th century. And they're they're like, very illustrative. You know, the ancient the ancient documents are very illustrative and they hold true to the modern age. This particular railroad line. The grant was made in the 1860s and has never been granted since. So this deed or this easement, I should say, from like 1865, is still applicable and affects this this parcel. Okay. So that was the basics touched on a lot of different things and we're going to see it come to life in a case study. This is a solar energy company, and they're requesting in this particular project to cross a county drainage easement that is on commercial property. So you have a solar energy company to pass along here, and they're building a large solar panel array on top of like a one story warehouse. You see this like large, like warehouse buildings, office buildings, you know, the ones like maybe like a large movie theater complex, usually low to the ground, but have very large rooftops. These are ideal for solar panel arrays, you know, in addition to being good, good energy practice for the owner of the property who will get to use the solar energy, you know, in our push toward a going, what is it, zero carbon. Zero net carbon usage and renewable energy initiatives, Solar panels in general. Generally a positive thing. But in this case, we have a solar panel project and got to run the power that's generated back to the main power grid. You know, the owner of the warehouse is going to keep some of it and the rest gets sent back, you know, sold back to the grid. And there are programs for that. Et cetera. Et cetera. We're not going to touch on that here. We're just basically touching on the physical aspect, the crossing of the land. We have a 30 foot wide drainage easement, and it turns out that these to the left of this this image is the large warehouse. And the solar panel project is to cross over this county drainage easement to reach those utility lines on the opposite side of the street. There's no way to get there without crossing, without crossing this easement. And you have like a road there. But, you know, there's like a road nearby. But, you know, they have to dig up the road if you're going to go underground. It's much more extensive. Drainage easements are typically unpaved. You know, it's it's not impervious surface, whatever you want to call it. And just to go back to our little check, because we went through the categories earlier, the drainage easement held by the county is in gross because the county is an entity and not a parcel. The express cost is a written, recorded, recorded document, as we shall see. And it's affirmative, gives the county a right to do something as opposed to a negative easement, which would prevent the parcel owner from doing something. And here we go. We're taking a look at actual phrasing from the easement grant and seeing it just kind of manifest in the physical landscape. So to get a sense of the the legalese that goes into these documents, how they're written, it's very like kind of a doctrinal kind of a standardized style of phrasing that's often used. But these things have real life impacts, real life consequences. And in this case, we have the phrasing that's allowing the county to create this long, longitudinal drainage ditch with the culverts on either side. In this case, the term swale is used in the in the easement document and, you know, drainage ditch, swale, they're relatively similar. It's a low long passageway, unpaved where where water can run drainage, water can run through. And then you have storm sewer facilities and those are the culverts. And then finally, the easement is described as being 30ft in width. And we can see there's 30ft wide. You can almost guesstimate it. Looking at the nearby properties, you get a sense of where it begins and ends. Here's another image from our little case study. And this is a site plan, a transparency of the site plan laid over a satellite image. Real good sense of it on the upper left, that little orange bar there, that is. This. That is the drainage easement we were just looking at. Just went back to it for a moment. It's running right along there. And then in the lower right, you can see the large patterns in turquoise and blue and purple and yellow. Those are the solar panel arrays on top of that large rectangle, which is the warehouse. You can also see you can see this thing physically forming here. You got the solar panel arrays and you see those thick black bars leading from it. And that's the proposed utility lines. Now they're running along, running along the property, and they make a 90 degree turn and do some kind of roundabouts. And then finally, you see where they have to cross the drainage easement. There's no getting around it. No. The engineers and the the environmental assessors and the other those involved in the project determined that this was the only way you couldn't cross under the roads and there was no other way to get the solar panel energy to the main power grid. This 30 foot wide drainage easement. And I'm going to look a little further at it so that it's 30ft wide. We saw that the county has the permission to install swales and facilities and culverts cetera. Et cetera. And now the question becomes. It seems like this easement is for a very limited purpose. And you even need the approval of the county to run these utility lines, because as it turns out, the utility line is going to be passing over the drainage easement 20ft overhead, like a power line running from a from a transformer to a house. It's a drop. It's a power drop, essentially. So it's not even going to be dug under the drainage easement. It's going overhead. And the easement is only for the purpose of drainage. So if one is going to make a quick judgment call and doesn't have time to do the research, you might say, oh, I don't need we don't need county approval for this. It's you know, it's only for drainage. The purpose is limited and we're going 20ft over it. Then you move on forward and then you run into a snag down the line when one of the parties is doing their due diligence. And it turns out that you do indeed need the county approval because you look at the easement grant a little closer and it specifies that no buildings or structures of any kind whatsoever shall be erected in on above the lands and above. And black letter phrasing is the utility line. It is above the land, so it actually need county consent to do that. So Altus Power would have to interact with the county and get their approval. Okay. We're going to have a little parting thoughts on easement impact. And we went through the types of easements, the effect they can have, who the parties who typically hold them. And in this case, we're going to focus on something very specific because this is one of the main things that comes up when dealing with projects, you know, kind of guess real world applications, dealing with developments like solar panels, drainage construction, road construction, driveway construction, all of these things. You know, we come across a lot of these restrictions, you know, least mentioned there's a whole bunch of them. But we're focused on easements today, and we're going to go through several categories of easements and we're going to determine the most important question as a project manager or developer is do I need consent from the holder of this easement to cross over it or to do my project? And if the easement is expressed, that means it's written doesn't always mean it's recorded, but it's typically going to be recorded in the in the county's land records or over the land records are being recorded in your jurisdiction. So when you have an express easement and you get your hands on it, you can look it over. You can sometimes it's very clear when approval is required. Sometimes it's very clear that that there are other uses that are permitted. Sometimes an easement is phrased in such a way where it's not exclusive to the easement holder. Like for passage, it's like, yes, the neighbor can walk over my property to get to his shed every day, but we can do anything as long as we don't put a fence up and block his way. We can do whatever we want and we have implied easements. These are a little trickier. This is the ones that are not written. You know, typically, the statute of frauds governs easements. You want a description of them, You want them in writing and wise practice to have them recorded. But with easements, as with just about everything else, every field of law, there are always exceptions, and easements are no exception to that rule of exceptions. So basically, if an easement is implied, it's a little tricky. You're looking at a parcel, you're doing a project. And then you might see a landowner nearby and it looks like you see, you know, you're there for a week. So you're a you're advising, you're helping drafting the contracts, you're helping doing all these things for the for the manager. And it was a law office. You get deeply involved in these large, large projects that have all sorts of wrinkles and twists and turns. And again, today we're zoned on easements and you're saying, wow, it looks like there is some sort of a even going on here, but nothing turned up in the title report. Survey didn't have anything. Doesn't look like this guy has any other way to get from point A to point B And, you know, it looks like you have an implied easement here. And if I do anything out of line, the person who's crossing every day who might believe he has a right to cross in a right of way and and then that could become an issue. So you kind of deal with them on a on a case by case basis. No. And you can make judgment calls or you could tell that you could request consent for for a potential holder of an easement for what may be an implied easement. You can just play it safe. Exclusive easements. These are like for like exclusive use of a property. Railroads are a good example of that. You know, you sometimes do have like essential services like pipelines passing under them for drinking water. There's no way around it. But generally speaking, railroad companies like to keep their rights of way free of anything and free of any obstruction. You know, it's a matter of safety. It's a matter of control. It's a matter of of a hundred different things. So they may have like the exclusive easement to use a property. They can use it for railroad purposes, but they have the exclusive use of the parcel creates an interesting scenario you have. Okay, Conrail can only use this stretch of land for railroad purposes. They're the only ones who can be on it and they're the only ones who have a right to use it. So it's like, okay, as long as they're only using it for railroad purposes, no one else can touch it. Let's say they allow a telecommunications provider to run a fiber line along that railroad conduit as sometimes happens, like, okay, that's a can create some interesting issues. You know, we've come across that before in our practice. You might have like a carrier or a like a cable company. They say, you know, railroad at large, long stretches of a of like an uninterrupted of right of way. So running like a fiber optic cable conduit along a railroad is very, very efficient. It makes a whole lot of sense. The only problem is that railroad companies don't typically get their rights to these long rights of way. Their railroad rights of way by one means they typically cobble them together, kind of like utility companies. They may have some buy for ownership. They may have bought out the owner and others. They have only a grant for a specific purpose. Other times they have exclusive use and so on. So the rail company, railroad companies cobbled together their their interest, their right to use their particular rail lines. So when that happens and you have a fiber company should say a communication provider wants to run fiber along it, you could have a bunch of landowners coming out of the woodwork claiming that the railroad company has exceeded the right and extent of their easement. And, you know, they try to sue for injunctive relief or anything like that to stop this from happening or get compensated for it. Sometimes they're like, okay, you keep the fiber fiber lines going on. But you know, we're getting a portion of the of any revenue you're getting for this. An easements non-exclusive then case by case basis non-exclusive very often driveways again using the example frequently sidewalks, you know, things where multiple parties can pass on you know even construct things and kind of just look at it as a law office representing a developer or representing a homeowner wherever you happen to represent it, kind of deal with those on a case by case basis. And sometimes you'll run into clear and unambiguous provisions and a good easement will have it that way. A good easement, usually well constructed easement, leaves a little to the imagination and usually gives clear guidance. Unfortunately, there are more the exception than the rule. Most easements, you know, the phrasing is always like usually like leaves things in doubt. You never quite sure. Sometimes there's complete silence on whatever it is you're concerned about. In those cases, the best practice is probably to err on the side of caution, get the easement holders consent, even if it turns out that it really wasn't needed for later analysis. You know, play it safe. While some summarize that again, we were just talking about it easement holder consent and hold harmless letters. Those are your two best friends as a law practice and you know your two best friends to ensure the least chance of any issues arising. From whatever your client is doing, however they're doing it and whatever easements they're affecting, if you're able to somehow get the consent of the easement holder or have them sign some form of communication or hold harmless anything where the easement holder is aware of what's happening and they're good with it, that's your best bet. And we tie that back into how we come across these easements, surveys, title title reports, contracts, filed maps, all those different things. We found them. We've evaluated them. And now we. Come to our conclusion here. Okay. We're going to do a little bit of a review here. We're going to. Look at first note, as we've mentioned before, that easements impact nearly every parcel of land where in the state of New Jersey. We often deal with New Jersey and New York and sometimes Pennsylvania. And it's safe to say that whether it's a large stadium, whether it's a one family house, whether it's an apartment building. Whether it's some sort of office building, whether it's a park, whatever it happens to be, there's a good chance that an easement, some form, some form of restriction is going to be affecting a parcel. So you do your due diligence and you find out what they are and and you work that into your overall plan. I guess a quiet title, whatever the term is like when you're about to embark on a project, you know you want that. Go ahead. You want that notice to proceed. You just want to have the sense that you've taken care of all the land use restrictions. Then, of course, we mentioned things like zoning licenses and all these things come into play. So easements are by no means the only thing that affect that affect properties, private properties, public properties, a whole bunch of other things. But they often are very, very imposing. Their presence is, you know, it can't be it can't be willed away. You know, they have to be dealt with. So once you find them, you deal with them. Since we're mentioning the many factors, you know, just a little bit of a digression here to just bring it into a broader context. The you mentioned profits, a prendre. You know, those are mineral rights. You know, directly tie in. And we mentioned covenants and restrictions and deeds. We just touched on it. These are these are things that are often overlap with and often considered very similar to easements in their in their nature with mineral rights or mining rights or hunting rights, you would have a right to access a property in order to remove something of value. It could be a mineral gold or it could be a could be a wild game, could be like a, you know, a deer hunting, you know, it could be any of these other things that that would be those mineral rights. And also we have covenants and restrictions in deeds. Whom we should have went a little more in this earlier. But since we're at the conclusion, there's no harm in tying it in now because it is important. Covenants and restrictions are in a fee simple conveyance. It'll be like such and such parcel like Lot one is transferred from Mr. Smith to Mr. Jones. And in every way you're getting fee simple, absolute, but subject to some form of restriction like subject to such and such. And these restrictions can often sound very similar to easements, and sometimes it can be hard to tell the difference. Like an easement easement in a deed is usually clearly states something like reserving unto the grantor the right to access the nearby lake by passing over a ten foot wide strip on the property, Something like that. You would have you would have that and then basically passing over this ten foot wide strip and that would be reserved. The grantor would be selling selling a property to the grantee. And he probably owns two of them. He owns two neighboring parcels and he's selling one of them to a to a family. He wants to still be able to access a nearby lake. So he'd be like, okay, so you're getting this fee, simple, absolute conveyance, but we're reserving a ten foot wide easement to the current owner of the parcel that he owns to access the lake. So that's a we have again, we tie it back into our original categorization. That would be an easement appurtenant because it's benefiting one parcel over another. We've got another little wrinkle. If you have like you have, okay, the grantor is a person and the grantee is a person, and yet it's an easement for tenant because parcels don't have consciousness, parcels don't grant Right. It has to at some point be an individual. So you have the current property owner granting a state, conveying a parcel to the nearby to a neighboring family. They're buying the nearby parcel, but reserving the easement for the owner of the parcel. He could have phrased that just for himself the minute he sold the parcel. That is no longer the easement extinguished, but typically you keep it as benefiting a parcel, in this case accessing a nearby lake or a nearby stream to go fishing or to go boating or whatever it is. Or accessing a nearby highway. Or to be convenient cetera. Et cetera. And that would be one parcel benefiting another. That would be an easement, Appurtenant. And again, it could have been an easement in gross. There are exceptions to every rule. You know, maybe the parcel is buying, maybe the family is buying. The neighboring parcel doesn't want to have be forever encumbered by this easement. Maybe they're like, well, they know this guy is selling in five years, so we'll just make it to him. Then you would have an easement in Gross for the same purpose. So, oops. I apologize. I jumped ahead a little. Okay. Some of the practices we want to come away with. Okay. You want to adhere to the best practices to minimize risk for your clients, for your practice, for project developers and project managers and. What are those best practices? Let's restate them. We went through them thoroughly and we're going to restate them here in our conclusion. We have required the easement holder consent. Whenever there's any doubt, there's any doubt, there's a lack of clarity in the in the document. You're not even sure if it's an easement, not even sure what's happening, or maybe you couldn't get a hold on it. Survey referenced it and you couldn't find it in the land records. Sometimes it'll say reserving an easement to such and such, but it doesn't have a book in page number. And maybe the surveyor found it from like a filed map. You know, he's very familiar with the town, let's say, and he knows, okay, I know this is a subdivision, blah, blah, blah, blah. And he finds the easement, doesn't really have any information on it. And then you're like, oh, God. But at least he has the parcel that it benefits or the party that it's granted to, because that was information that was included in the subdivision map. So 20 years earlier, when the property was subdivided, there was a little more awareness and they put just enough information in the map for the current law, your current law practice or project developer to to reach out to the necessary party and get their consent even with minimal information. You know, not quite sure if it's exclusive or not. You're not quite sure what purpose it's for, but just get the consent. As we also mentioned, demarcations hold harmless letters, things like that. They're also very important. So you get them in addition to consent and, you know, in recordable form, preferably. And this is kind of a practical way to help your help your clients out in their projects. And again, as we mentioned, this this particular course is more about the impacts of easements, how to deal with them, how to get past them, how to work around them. It's not about drafting them and negotiating them. We touched on that a little bit. You know, how they're formed and so on. But we're really not touching on negotiation and drafting of easements. So require consent. Hold harmless indemnification, use title reports and surveys to find them and use all the other things we stated once more just for completeness and thoroughness. File maps. Tax Maps. Contracts. Title report Deeds leases, lease agreements, quick touching upon a lease agreement before I give my parting words here. It's another thing very similar to easements in many regards. You have lease agreements and they give a right to use a land. You know, typically you lease an office building, you know, and you can set up shop there and, and, you know, renovate the office, you know, put your signage in front of it and you can do all these things on a lease agreement. And but it is different from an easement. It's typically not recorded, typically a monthly rent involved or easements. Sometimes you have like a one time payment, sometimes no payment at all. But a lease you have a monthly rent, you know, and there's more rights to terminate by the by the grantor or the landholder underlying it. Easements is a lot trickier. You really have to abuse your easement, right? You have to expand it. You have to go beyond the driveway that you that you're allowed to use. You have to build a fence. Let's do something like crazy that really. Thatrillioneally stretches to the point where the underlying Servient estate can can sue for injunctive relief or some form of relief. So my parting words are. As we mentioned earlier, no two properties are alike. There's exceptions to every rule. Here with all of these on a case by case basis. View easements in the context of the entirety of a project or a property. Whatever you're doing, deal with them in their entirety sense. In some cases, we looked at the stormwater drainage easement and we saw that it was, you know, restrictive and that that no one could build anything on this stormwater easement, couldn't build on above or over it. And it turns out we happen to do a little research on that. And we looked into the underlying municipalities zoning ordinance, their their zoning regulations. And it turns out that they almost mirrored each other. The stormwater drainage easement restrictions and the municipalities zoning regulations on stormwater facilities were pretty much in lock step. So in that case, there was synchronization not not conflict. In some cases the easement will conflict. We saw the earlier example to touch on that. Again, tie it all back together. Before we conclude, we saw the earlier example where we had the the owner who had a higher, higher parcel that was higher on a hill and he subdivided it and he sold the lower parcel. To another owner, to a to a developer, but with the restriction that it could not go above 50ft in height because you don't want to obstruct the view of the higher the higher situated parcel. And they're building, you know, they're like little residential units up there and they want to keep the view of the nearby ocean or river. So yeah, basically in that case, the you have this height restriction on development on the lower lying buildings. And in that case, we also looked into the zoning regulations. And it turns out that that the that they were pretty close in lockstep to like a 50 foot height restriction on buildings. And in the zoning district, it was like 40ft was the height limit. So in that case, the zoning district would win out. The stricter of the two provisions typically applies when there's a conflict. That's another best practice. Look at everything in its entirety. When there's conflicts between easements, covenants, zoning regulations, state and federal involvement licenses, you just go the stricter of all the measures. You know, it's not always pleasant for a developer to hear that, but it's a best practice. And again, we mentioned no two properties are alike and every easement has a different impact. View them holistically and in the context of whatever you're dealing with to better serve your clients and to better deal with easements. Thank you very much for joining.

Presenter(s)

PR
Paul Roe
Chief Technology Officer
Hoplite Communications, LLC
PLJ
Peter Lupo, JD
Founder and CEO
Hoplite Communications, LLC

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                                                        June 29, 2025 at 11:59PM HST

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                                                        June 29, 2025 at 11:59PM HST

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                                                          July 4, 2025 at 11:59PM HST

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                                                          December 31, 2024 at 11:59PM HST

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                                                              June 30, 2024 at 11:59PM HST

                                                              Status
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                                                              June 28, 2024 at 11:59PM HST

                                                              Status
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                                                              December 31, 2026 at 11:59PM HST

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                                                                    August 2, 2025 at 11:59PM HST

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                                                                      June 29, 2025 at 11:59PM HST

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                                                                        Pending
                                                                        Credits
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                                                                        July 10, 2025 at 11:59PM HST

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                                                                        December 31, 2026 at 11:59PM HST

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                                                                        June 29, 2025 at 11:59PM HST

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                                                                          Available
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                                                                          February 28, 2025 at 11:59PM HST

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                                                                          June 29, 2025 at 11:59PM HST

                                                                          Status
                                                                          Available
                                                                          Credits
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                                                                          Credits
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                                                                          June 27, 2024 at 11:59PM HST

                                                                          Status
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                                                                            January 16, 2026 at 11:59PM HST

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                                                                            Credits
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                                                                              Pending
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                                                                                  July 10, 2024 at 11:59PM HST

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                                                                                  June 30, 2024 at 11:59PM HST

                                                                                  Status
                                                                                  Approved
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                                                                                    Credits
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                                                                                    June 29, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Approved
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                                                                                      June 29, 2025 at 11:59PM HST

                                                                                      Status
                                                                                      Available
                                                                                      Credits
                                                                                        Available until
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                                                                                        Pending
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                                                                                          Available until
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                                                                                          Not Eligible
                                                                                          Credits
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