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Sub: profit a prende v. condemnation
Author: alejo [21296]
05 Feb 2010 05:46 PM
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alejo

Please clarify. The conviser states that courts are divided whether a right on the land of other (easements, profits, covenants, and equitable servitudes) are entitle to compensation under the taking clause. On a MBE question the right answer states that the plaintiff is entitled to compensation because is a property right protected by the due process clause. Anyone has the right answer? Is a person entitled to be compensated from a condemned piece of land which he has a non-possessory interest? I know that the condemnation extingish the profit but after the extinguishment can he be compensated?
Thank you.

13393
Author: belandrei [300] Send Private Message
06 Feb 2010 01:29 AM
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belandrei

would like to help, but did not exactly get our question
But, look profit a prender =easement (just sort of other non-possessory interest in a land of another)
Hence, an easement is terminated when a public authority condemns the fee to the servient estate for a purpose that conflicts with the continued existence of the servitude.  Condemnation of an easement or other interest in the servient estate also extinguishes an existing easement to the extent that the easement or other interest created by condemnation is inconsistent with utilization of the existing servitude. 

For example, an easement may be condemned for a limited access highway that bisects an existing private roadway easement.  Further, a public authority may own land subject to an easement and simply condemn the easement itself in order to rid the servient estate of the burden of the servitude.  Similarly, a governmental entity may exercise its power of eminent domain to acquire an existing easement in order to use the easement for public purposes.

Whenever an easement is terminated by condemnation, the easement holder is entitled to just compensation.  However, controversy often arises as to the value of the easement for purposes of determining the amount of compensation due the easement holder.  Courts must consider a variety of issues in litigation over the amount of compensation to which an easement holder is entitled. 
It seems that Conviser meant to say that just compensation is due,  but courts have hard time to calculate what it might be in case of profits.


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Author: alejo [21296]
06 Feb 2010 03:23 AM
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alejo

got it. Thanks a lot!

25020


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