What is involved in an easement dispute?
Litigation of easement disputes often involves legal complexity because of conflicting legal theories and precedents, which can make struggles over a few feet of land as much of a legal challenge as commercial disputes involving millions of dollars.
Can a tenant sue for adverse possession of an easement?
For example, if they have historically accessed their property across your property for long enough under the right conditions, they could sue for adverse possession of an easement across your property. In the alternative, Colorado also recognizes...
What happens if an easement is denied?
Denying an Easement. When the easement request is based on benefits to the community, typically a judge will grant the easement. In some cases, even when an easement is granted, a court could determine that the property owner is unduly burdened and will require compensation in some form to the property owner.
Do easements affect the value of a property?
Easements can affect property values, but if you buy land that already has an easement, the land's value includes the easement as well. If someone buys an easement on your land, a real estate appraiser conducts a valuation of the property.
Do you have to give an easement in Alabama?
The state of Alabama has a law that says you can't “land lock” your neighbor. That is, deny them physical access. But this does not mean they have to give you a written easement, and it does not mean they have to let you string power lines or run water lines across their property.
How do I get an easement in Arkansas?
The prerequisites to the creation of an easement by necessity are: 1) the titles to the two tracts in question must have been held by one person; 2) the unity of title must have been severed by a conveyance of one of the tracts; 3) the easement must be necessary in order for the owner of the dominant tenement to use ...
Who is responsible for maintaining an easement in South Carolina?
Va. 781, 111 S.E. 846 (1922). Ordinarily, the owner of an easement has the duty to keep it in repair.
Who is responsible for maintaining an easement in Michigan?
the owner of the easementWho is Responsible for Maintaining an Easement in Michigan? Who is responsible for maintaining an easement? The short answer is the owner of the easement. A landowner that has an easement over the property of another landowner is the holder of the dominant estate.
How do easements work in Arkansas?
Arkansas Easement Deed Information It allows the easement holder to use real property in Arkansas that he or she does not own or possess, but does not allow the holder to occupy the land or exclude others from using it, unless their use would interfere with the easement holder's use.
How do I remove an easement from my property in Arkansas?
How to Get Rid of Real Estate EasementsQuiet the Title.Allow the Purpose for the Easement to Expire.Abandon the Easement.Stop Using a Prescriptive Easement.Destroy the Reason for the Easement.Merge the Dominant and Servient Properties.Execute a Release Agreement.
How do I remove an easement from my property?
There are eight ways to terminate an easement: abandonment, merger, end of necessity, demolition, recording act, condemnation, adverse possession, and release.
Who is the dominant owner of an easement?
The dominant land is the land owned by the owner of the right – the farmhouse in our above example. The easement is described as “appurtenant” to the dominant land. The servient land is the land which bears the burden of the easement, and in our example would be the fields running down to the road.
Can a property be landlocked in SC?
To access landlocked property, you have to cross real estate owned by another person. Landlocked property owners have legal rights-of-way to their real estate, commonly called easement rights. An easement is a legal right to use a portion of land not owned by you to gain access to property you do own.
How long does an easement last in Michigan?
An example would be a shared driveway easement meant to benefit two parcels. The easement last forever or until both parcel owners agree to terminate it.
How wide is an easement in Michigan?
A. Easements for public roads rights-of-way are granted to duly authorized public agencies. Public Act 283 of 1909 indicates that a public highway right-of-way is four rods (66 FEET) in width even though there is no recorded instrument of conveyance.
How wide is a utility easement in Michigan?
Easements for underground electric may range from 10 to 20 feet in width.
How wide is a utility easement in Arkansas?
12 - 20 feet wideTypical easements are 12 - 20 feet wide, the main transmission lines for water or sewer may have up to 50-foot easements and in most cases the easements will not be cut to full width.
How do I claim abandoned land in Arkansas?
You'd basically be asking a Arkansas state court judge (specifically, a District Court judge) to issue an order declaring that you, and not the trespasser, are the true owner and title holder of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.
What is a prescriptive easement in Arkansas?
In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc.
What is an easement created by implication?
Two common easements created by implication are easements of necessity and easements implied from quasi-easements.
How are easements created?
Easements are usually created by a transfer in a deed or some other written document such as a will or contract. Creating an easement requires the same formalities as the transferring or creating of other interests in land. It typically requires a written document, a signature, and proper delivery of the document.
What is the termination of an easement?
Termination of Easements. Easement Attorneys. An easement is a property right that gives its holder an interest in land that's owned by someone else. It's common for people to lack a clear understanding of easements and the numerous legal problems that can arise in their creation, interpretation, and implementation.
How long do easements last?
Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential problems by expressly providing that the easement is permanent.
What is the term for land that is burdened by an easement?
Land affected or "burdened" by an easement is called a "servient estate ," while the land or person benefited by the easement is known as the "dominant estate." If the easement benefits a particular piece of land, it's said to be "appurtenant" to the land. If the easement only benefits an individual personally, not as an owner of a particular piece of land, the easement is known as "in gross."
When is an easement terminated?
An easement may be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement (in writing) to the owner of the servient estate.
What is an easement of necessity?
Easements of necessity are typically implied to give access to a landlocked piece of property. Easements implied from quasi-easements are based on a landowner's prior use of part of his or her property for the benefit of another portion of his land.
Who is liable for an accident caused by an easement?
In most cases, the easement rights holder, i.e., the party that directly benefits from the easement , is primarily liable for negligently creating a hazardous situation that may result in an accident. You may, however, also be liable to some extent if it’s argued on the rights facts.
Who can get an easement?
An easement can be granted to anyone, including a neighbor, government agency, utility company, or even a privately owned corporation.
What is an easement in real estate?
First off, an “easement” is a legal right that refers to using an individual’s real property for a specific purpose and a specific duration. It essentially gives that person or entity the legal right to go through your land for the duration agreed upon, provided that the utility derived from it is consistent and adheres to ...
What to do if you don't agree to a cost sharing agreement?
If that doesn’t work and they don’t agree to a cost-sharing arrangement, visit the county clerk’s office and find out if there’s an ease-maintenance agreement on file. If there is – problem solved. If not, well, tough luck.
What is a right of way easement?
A right of way easement, on the other hand, allows one party to use the other party’s real property as a passage. So, the road that passes through or leads to your land would be an example of a right of way, especially if it is meant to provide a reasonable solution for travel.
Is a drainage easement gross or gross?
It may also be gross; in which case the requesting party uses the owner’s land for the benefit of the adjoining properties. A drainage easement granted to your neighbor would be one such example, since it would prevent flooding in both properties and control runoff.
Can you terminate an easement unilaterally?
If you can’t agree on a way forward, there’s nothing more you can do since you can’t unilaterally terminate an easement.
2 attorney answers
A judge in the state of Washington will only award attorney fees if there is a writing (such as a contract) awarding attorney fees, a specific statute allows for attorney fees (such as the Consumer Protection Act); or if there is a well grounded argument in equity...
Pamela Hazelton Rohr
Generally, you can try to obtain attorney's fees in an action. The judge will be more likely to award them if you can show that you are not in the wrong and that you did everything you could to avoid unnecessary legal costs. How long has the fence been there? You can love an easement by not using it.
What happens when an easement is granted?
In some cases, even when an easement is granted, a court could determine that the property owner is unduly burdened and will require compensation in some form to the property owner.
What is an easement on a property?
Renting and Tenant Rights. By Sarah McWilliams. An easement is a request from either a public or private source to access your property for their benefit. Since an easement on your property typically forms some type of burden on you, you have the right to deny that easement if you choose.
What is an affirmative easement?
An easement may be affirmative or negative. An affirmative easement is essentially a request to use your property out of necessity. For example, your neighbor may need to run wires or pipes underground to service their property. In other situations, a neighbor may need to cross your property to access theirs and request to build a drive.
Why do you need a negative easement?
A negative easement may be requested when your property is causing or could potentially cause a problem to your neighbor. Perhaps you are building a second story addition that will be an eyesore or block their view of the beach or other scenery. Your neighbor may impose an easement to try and prevent you from completing the construction.
When you are purchasing property, should any easements be included in writing?
When you are purchasing property, any easements should be included in writing; however, it’s always smart to ask before buying a new home or property to be fully aware of any easements. av-override. ‒‒:‒‒. /.
Can you deny an easement?
Denying an Easement. Since an easement is a request for use of your property, you have the right to deny it. However, if it’s a public entity that is requesting the easement, such as the local government, they may take you to court. When the easement request is based on benefits to the community, typically a judge will grant the easement.
Do easements change when you sell your property?
Easements don’t change when property is transferred. If you sell your property, any easements that currently are on your property automatically transfer to the next owner. It’s important that all easements are documented so the next owner is aware of any easements on the property.
What Are the Effects of Easements?
The landowner who grants an easement can't build structures within a prescribed area surrounding it, and they also can't use fencing to hinder access. Any activity that blocks the use of the easement is prohibited. 2
What Is an Easement?
An easement is a legal ability to use someone else's land for a certain purpose.
What is the difference between an easement and a right of way?
Easements vs. Right-of-Way. An easement is the right to use another person's land for a stated purpose. It can involve a broad part of the property or only a certain portion. A right-of-way is a type of easement that allows someone to travel through another person's land to get somewhere else.
How wide is an electric easement?
Utility easements vary in size depending on the specific utilities running through the easement. A basic electric underground easement may only be 10 feet wide, while a sewer easement could be as much as 30 feet wide. 7 Check with your local utility provider for more information.
What are the two types of easements?
There are two types of easements: the easement in gross and the easement appurtenant. Easements in gross are given to people or companies for a specific purpose. If property ownership is transferred through sale or other legal methods, a new easement agreement must be made.
What is an easement appurtenant?
Easements appurtenant are attached to the land, not the person. Rights-of-way are typical of this type. This is because they are passed on with the property.
What is a prescriptive easement?
Prescriptive easements are created when someone has been using a portion of your land without your permission. This gives them the right to keep using your land, as long as the length of use meets certain requirements.
Why is litigation of easements so challenging?
This is so because litigation of easement disputes typically presents a mixture of legal conundrums, factual disputes and human emotions. Litigation of easement disputes often involves legal complexity because of conflicting legal theories and precedents, which can make struggles over a few feet of land as much of a legal challenge as commercial disputes involving millions of dollars. Such litigation often presents unique factual inquiries because historic reconstruction is necessary to determine the intent of parties long since departed and/or patterns of past usage of an easement. Finally, the human element often supercharges an already complex dispute because easement battles almost always arise between neighboring property owners, whose emotions tend to run high. The following outline discusses each of these three elements in turn.
Why is easement litigation so expensive?
Easement litigation can be very expensive because of the complex factual and legal issues involved, as well as the need to retain experts. Particularly where insurance is not available, clients need realistic advice, out of the starting gate, as to the potential costs of litigation, as well as the downsides of not succeeding in the litigation, and guided to a cost effective litigation strategy.
How long can a prescriptive easement be used?
A prescriptive easement may be acquired by open, notorious, continuous adverse use, under claim of right, for a period of five years. Code Civ. Proc. Sec. 321; Civ. Code Sec. 1007; Applegate v. O ta (1983) 146 Cal.App.3d 702, 708. It should be noted that, unlike a claim for adverse possession, a plaintiff need not demonstrate payment of taxes on the subject property in order to establish rights to continued use.
How long does an easement have to be abandoned?
Pursuant to Civil Code Section 887.010 et seq., an easement may be deemed abandoned if, for a period of 20 years immediately preceding commencement of the action: (1) the easement is not used at any time, (2) no separate property tax assessment is made of the easement or, if made, no taxes are paid on the assessment, and (3) no instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded. (Civ. Code Section 887.050.) It should be noted that such an action can be avoided by filing a notice of intent to preserve easement within the 20 year period. (Civ. Code Section 887.060.)
How to resolve an easement dispute?
By means of example, if parties truly cannot get along in a shared use arrangement, it may be possible to partition shared property to provide for apportioned exclusive use rather than shared use or to fashion a limited exclusive easement, rather than a broader non-exclusive easement, to satisfy the same objective. Other creative solutions may be possible as well, such as exchanging the quit claim of an easement for a long term lease or irrevocable license to use another portion of the property to satisfy the same objectives as the easement. In many if not all cases, creative solutions can serve to provide both clients with results that could not be achieved in litigation, win or lose.
Why is it important to litigate over easements?
Although litigation over easements may only involve a small piece of land, such litigation frequently, if not always, is of exceeding importance to the litigants, either because the land in question is necessary for ingress and egress to their property, or because use of the land by another is a threat to privacy.
When initiating an action to resolve a dispute over an easement, express, implied or prescriptive, are?
When initiating an action to resolve a dispute over an easement, express, implied or prescriptive, several causes of action are often relied upon to frame the dispute, whether the plaintiff is the dominant tenement, seeking to clarify rights in an easement, or the servient tenement seeking to eliminate or limit the rights of a dominant tenement under an easement. Although not exhaustive, the following is a short list of the usual suspects, with some elements and requirements of each noted:
Can you install a gate on a fence?
The Court cited a case where the land owner was entitled to install a gate along a fence on his property as long as he provided a key to the road easement holder.
Can Inzana affect Turlock's easement?
In this case, Inzana and his trees could not unreasonably affect Turlock’s ability to use the easement with waterline.
Did Inzana's trees interfere with the pipeline?
Inzana argued the trees did not interfere with the pipeline, the trees and pipeline were compatible. Turlock threatened to shut off Inzana’s water so he filed a petition for writ of administrative mandamus asking to keep the pistachio trees – claiming they did not unreasonably interfere with Turlock’s pipeline and easement.
How do you terminate an easement?
For example, an easement can be terminated by written agreement between the easement holder and the easement owner.
How do easements end?
For example, an easement can be terminated by written agreement between the easement holder and the easement owner. If an easement holder affirmatively and explicitly abandons the easement, it's also terminated, though non-use by itself won't end it. Easements are also terminated when they're no longer needed, creating what's called an ending by necessity.
What is the right to prevent others from using your property?
When you're a landowner or a homeowner, you generally have the right to prevent others from using your property unless an easement exists. An easement on your property gives its holder a right to its use according to the provisions described in the easement.
Can an easement holder use a private parking area?
However, just because an easement holder has a private parking area on your land doesn't mean a right exists to turn it into a scrap business.
Can an easement owner interfere with a paved road?
However, an easement owner can't interfere with the easement holder's use and enjoyment of the easement.
Who has the right to maintain an easement?
Basically, the person or party using an easement, known as an easement holder, has a duty to maintain it. Easement holders don't become owners of the land attached to their easements, though, and within limits the actual landowners retain most rights over it.
Can an easement be used to store vehicles?
Easements must generally be used for their original purposes though their uses can be changed to suit reasonable development. A private parking area on your property may be used by its easement holder to store vehicles, for instance. However, just because an easement holder has a private parking area on your land doesn't mean a right exists to turn it into a scrap business. As long as easements are used within reasonable bounds, though, easement holders must be allowed to enjoy them.
Table of Contents
Easements at A Glance
Creation of An Easement
Rights and Remedies Under An Easement
Transferability
Other Legal Issues to Consider
Termination of Easements
- Although permanent easements are the norm, they can be terminatedin a number of ways. These are some of the ways easements can be terminated 1. Construction work ends. Easements of limited duration commonly used to provide temporary access to a dominant estate will be terminated upon the completion of construction work. 2. One owner buys the other ...
Let An Attorney Ease Your Easement Concerns