UNDERSTANDING EASEMENTS IN REAL ESTATE Part 1: the Basics
Anyone purchasing real estate, or engaged in the development , marketing, or management of real estate should have a basic understanding about Easements that affect, or may in the future, affect the property.
This Article will commence a 5 Part Series on the important subject of Easements:
– Part 1 will explain what an Easement is, who are the parties, and how is it used;
– Part 2 will identify the various ways the Easements are created, both voluntarily and involuntarily;
– Part 3 will cover enforcement: what to do when one’s Easement rights are interfered with;
– Part 4 will cover Licenses, which are similar in many ways to Easements
– Part 5 will explain how Easements and Licenses can be terminated
What is an Easement?
An “Easement” is the right to use the land of another property owner for a special purpose. It is not an interest in land but, rather, it is an enforceable right to enter and use a portion of the land of another. As shown in the picture above, For example, as shown in this image, if Bob did not have a driveway through Tim’s Property, he would be “landlocked”, ie: he couldn’t get to the road from his Property. As a result, to be able to use his Property, he would need the right to cross Tim’s Property. This is typically done through the use of an Easement. Generally, easements are irrevocable.
California has long recognized easements as an important part of property law and as a way to ensure that fairness exists among landowners, particularly when a landowner possesses a landlocked parcel. Historically, easements were only allowed for right-of-way, support, light and air, and rights pertaining to artificial waterways. Today, however, courts recognize easements for a much broader range of uses, including but not limited to utility lines and scenic views.
Who are the parties to an Easement?
Since an Easement typically gives one property owner the legal right to do something on the land of another property owner, there are generally at least two parties involved in any Easement. The person who has the easement rights is called the “Dominant Tenant” and is entitled to all the benefits for which the easement was created. The person who land is subject to the easement is called the “Servient Tenant”. Sometimes in the law, the word Tenement is used instead of Tenant.
Does the Easement give the holder exclusive use of the Easement Area?
Easements typically are not exclusive, ie: both the Dominant and Servient Tenants have rights to access the easement area. However, the Servient Tenant cannot do anything to interfere with the Dominant Tenant’s use of the easement for its intended purposes. As a common example, such as with Bob and Tim above, a person may have an “ingress-egress” easement to drive over a portion of his neighbor’s land to access his own property which would otherwise be landlocked. The Servient Tenant (Bob) cannot erect a fence or anything else which would block the Dominent Tenant (Tim) from having free access to the Easement Area.
How long do Easements last?
Easement rights are typically recorded against the real property that is subject to the Easement. Because the rights and burdens of an easement attach to the affected real property, they are said to “run with the land” and are enforceable by and against the successors to the original Dominant and Servient Tenants. Easement rights start when the easement comes into existence and they continue in perpetuity unless terminated by written agreement, action of law, or passage of time.
What kinds of Easements are there?
As will be discussed in a Subsequent Article, there are numerous kinds of Easements that are created in different ways and fulfill different purposes. Some are created by agreement of the parties, others are created by law, and still others are created by useage over time.
For over 20 years, the attorneys of BPE Law Group, P.C. have been advising and representing property owners and real estate professionals in dealing with their legal concerns including easements and other land-use issues. Our major areas of practice include: Real Estate, Business, and Estate Planning. We do business primarily in California although our clients are world-wide. Check us out on the Web at: www.bpelaw.com. If you would like a consultation with us, please call our office at (916) 966-2260 or e-mail me at firstname.lastname@example.org.