Understanding Shared Land Rights Easements and Licenses Series Introduction
By Roberto M. Hernandez and Skyler E. Gray
September 26, 2023
Whether you just purchased or are a long-time owner of real estate, it is very important to understand the concept of shared land rights to prevent future litigation. For example, many individuals assume that their newly purchased residence is exclusively theirs. They then spend their hard-earned money to build a fence or plant several bushes along a bare strip of land on their property. The neighbors then approach the new homeowners, demanding the blockade be removed. Surprised, these new homeowners have inadvertently stumbled into the world of shared property rights.
Whether developing, selling, or purchasing real estate in a rural area or a densely populated city, it is not out of the ordinary for there to be existing shared land rights on your or your neighbor’s property. With shared land rights taking all shapes and sizes, it may be hard to spot at first. Thus, the purpose of this series is to assist our readers in understanding the different types of shared land rights that arise, either through easements or licenses, how they are created, and how they are terminated or prevented in the first place.
In this introductory article, we will start with a discussion on what an easement is and provide general information and terminology to guide you in better understanding the later articles in this series.
In California, an easement is a limited right to use or control another person’s real estate for a specific purpose. While uncommon, an easement may be “in gross,” which means that it is for the benefit of a specific individual. More commonly, though, an easement is “appurtenant,” which means that the benefitted party is whoever holds title to another specific real property, generally a neighboring property. The property owner who loses exclusive right to use of their property is called the “servient tenement.” The person or property owner granted the right to use the real property of another is called the “dominant tenement” or “easement holder.”
Despite often being in plain sight, easements are hard to spot. Easements can take the shape of access roads, alleys, walkways, utility poles, underground pipes, and even neighbor driveways. However, easements are not “estate in land.” In other words, the loss of some use or control of the land through an easement does not result in the property owner losing ownership of their property. As a result, the property owner stills hold title to the area of land that is the subject of the easement, despite being unable to prevent the limited use of the dominant tenement.
Notably, a seller of real property must disclose any easements affecting their property as easements are typically said to “run with the land,” meaning the easement is binding on any future owners as a successor-in-interest of the servient tenement. Additionally, it is important to note that while most easements are in writing, easements can also be created by conduct. Moreover, easements generally run into perpetuity and are difficult to terminate.
Easements play a critical role in shaping cities, towns, and parcels. Love them or hate them, they are here to stay. Although most easements are accessed daily without a problem, there are situations when knowing the basics of shared land rights can assist you in avoiding legal issues. Rights and obligations associated with easements can quickly escalate to neighbor disputes, disputes with utility companies, or even disputes with public agencies. Understanding and learning to identify easements is crucial to being a property owner in today’s densely populated America.
Future articles in this series will explore the most common easement types: express easement, easement by necessity, easement by prescription, and easement by implication – prior existing use. We will also touch on licenses, which are not easements but are similar in many ways. The one thing to take away from this upcoming series is that knowing and understanding the concept of shared land rights is essential whether you are a new or long-time property owner.
The information presented in this article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately so that you can determine your best options.
• May 10, 2022 – Using the 1031 to Reinvest
• August 23, 2022 – Understanding Private Road Maintenance
• January 10, 2023 – Website Accessibility Requirements
• February 14, 2023 – Understanding Mediation and Arbitration in RPA
• April 4, 2023 – Understanding Liquidated Damages in a Home Purchase Contract
• June 20, 2023 – Understanding the Lis Pendens
• June 27, 2023 – Do’s and Don’ts Guidelines to a Dental Practice Transition
By Roberto M. Hernandez and Skyler E. Gray
September 26, 2023
Whether you just purchased or are a long-time owner of real estate, it is very important to understand the concept of shared land rights to prevent future litigation. For example, many individuals assume that their newly purchased residence is exclusively theirs. They then spend their hard-earned money to build a fence or plant several bushes along a bare strip of land on their property. The neighbors then approach the new homeowners, demanding the blockade be removed. Surprised, these new homeowners have inadvertently stumbled into the world of shared property rights.
Whether developing, selling, or purchasing real estate in a rural area or a densely populated city, it is not out of the ordinary for there to be existing shared land rights on your or your neighbor’s property. With shared land rights taking all shapes and sizes, it may be hard to spot at first. Thus, the purpose of this series is to assist our readers in understanding the different types of shared land rights that arise, either through easements or licenses, how they are created, and how they are terminated or prevented in the first place.
In this introductory article, we will start with a discussion on what an easement is and provide general information and terminology to guide you in better understanding the later articles in this series.
In California, an easement is a limited right to use or control another person’s real estate for a specific purpose. While uncommon, an easement may be “in gross,” which means that it is for the benefit of a specific individual. More commonly, though, an easement is “appurtenant,” which means that the benefitted party is whoever holds title to another specific real property, generally a neighboring property. The property owner who loses exclusive right to use of their property is called the “servient tenement.” The person or property owner granted the right to use the real property of another is called the “dominant tenement” or “easement holder.”
Despite often being in plain sight, easements are hard to spot. Easements can take the shape of access roads, alleys, walkways, utility poles, underground pipes, and even neighbor driveways. However, easements are not “estate in land.” In other words, the loss of some use or control of the land through an easement does not result in the property owner losing ownership of their property. As a result, the property owner stills hold title to the area of land that is the subject of the easement, despite being unable to prevent the limited use of the dominant tenement.
Notably, a seller of real property must disclose any easements affecting their property as easements are typically said to “run with the land,” meaning the easement is binding on any future owners as a successor-in-interest of the servient tenement. Additionally, it is important to note that while most easements are in writing, easements can also be created by conduct. Moreover, easements generally run into perpetuity and are difficult to terminate.
Easements play a critical role in shaping cities, towns, and parcels. Love them or hate them, they are here to stay. Although most easements are accessed daily without a problem, there are situations when knowing the basics of shared land rights can assist you in avoiding legal issues. Rights and obligations associated with easements can quickly escalate to neighbor disputes, disputes with utility companies, or even disputes with public agencies. Understanding and learning to identify easements is crucial to being a property owner in today’s densely populated America.
Future articles in this series will explore the most common easement types: express easement, easement by necessity, easement by prescription, and easement by implication – prior existing use. We will also touch on licenses, which are not easements but are similar in many ways. The one thing to take away from this upcoming series is that knowing and understanding the concept of shared land rights is essential whether you are a new or long-time property owner.
The information presented in this article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately so that you can determine your best options.
• May 10, 2022 – Using the 1031 to Reinvest
• August 23, 2022 – Understanding Private Road Maintenance
• January 10, 2023 – Website Accessibility Requirements
• February 14, 2023 – Understanding Mediation and Arbitration in RPA
• April 4, 2023 – Understanding Liquidated Damages in a Home Purchase Contract
• June 20, 2023 – Understanding the Lis Pendens
• June 27, 2023 – Do’s and Don’ts Guidelines to a Dental Practice Transition