What rights does an easement holder have?
They give the easement holder an affirmative right – the right to travel over the easement or the right to have utilities or swales on the easement. In areas of the country with high density high rises or expensive beachfront properties, there are easements which give the easement holder view, solar, light, and air rights over and across the properties of others.
Who maintains Easement property?
Who has the duty to maintain and repair an easement?
- Background on easements. An easement is an interest that may burden another persons’ land. ...
- Creation. An easement may be created by deed, prescription, or implication from the particular set of facts and circumstances.
- Conclusion. ...
Do owners get compensation for easement?
While the current owners receive compensation, in most cases future owners of the easement will not receive payment. To receive compensation for an easement, the owner usually must be the one who initially grants the easement. An "easement in gross" is cancelled when a property changes hands.
Who maintains a right of way easement?
The short answer is – the owner of the easement is responsible for maintaining the easement. In other words, if you have an easement that allows you to use a portion of another person’s or company’s land, then it is your responsibility to maintain the easement – it is not the responsibility of the servient tenement (the person whose land is burdened by the easement).
What is an easement on a property?
An easement gives a person or organization a legal right to use someone else’s land—but only for a needed purpose . A utility company may have an easement on your property to access an electrical pole. Or if your driveway overlaps your property line, you might rely on an easement on your neighbor’s property to get to your garage.
How to know if a property has an easement?
Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner. But if you’re buying a bank-owned home being sold as-is, you should do some extra research yourself. Your real estate agent can help you decide if there’s reason to suspect a property might have an easement on it, but contact the city to find out for sure. Find out exactly where and what type of easements they are. Some easements, for example, remain after you buy the house, but others don’t.
What is a prescriptive easement?
Prescriptive easement: Prescriptive describes the way in which an easement comes into being. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. This is commonly known as “squatter’s rights.”. 3.
What is property rights easement?
The property rights an easement allows depends on the rules of your specific easement. There are many types, but these are some of the features that help define them: Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land that’s only accessible through a neighbor’s land.
Can an appurtenant have a private easement?
Public versus private: Both appurtenant and gross easements can grant access to public or private entities or properties. A private easement might allow a neighbor to access your property, and a public one might allow any member of the public to walk through your yard.
Can you challenge an easement?
They can. But you would need to go to court to challenge an easement, so it’s not easy to do in the middle of home buying. If the easement holder agrees to terminate, it could be a smoother process. And in some cases, easements have an expiration date (this would be stated in your deed), so that could be good news.
Is an easement good or bad?
Found out the home you’re planning to buy has an easement on the property? That could be a good thing, a bad thing, or an entirely neutral thing. Here’s what easements are, and how they affect your property rights.
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 right of an easement holder?
As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted," as long as they do not place an unreasonable burden on the servient land.
What happens if a court determines that a servient estate is unduly burdened by unreasonable?
If a court determines that a servient estate is unduly burdened by unreasonable use of the easement, the owner has several potential legal remedies. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of their rights and damages the servient estate, and in some cases termination of the easement.
What is an easement created by implication?
Two common easements created by implication are easements of necessity and easements implied from quasi-easements.
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."
Types of easements
Easements come in many forms. Here are some of the most common you may encounter:
Right of way easement
This is where a neighbor may need to pass through the property via a driveway to access the main road. Or, say Property A and Property B share a driveway. “It’s primarily located on Property A’s land, but it splits and also goes off to Property B’s land.
Utility maintenance easement
This easement is typically granted to utility companies to run power and cable lines on a property.
HOA or condominium easement
If you live in a condo or home managed by a homeowners association, odds are these institutions own much of the property—or at least the public areas—while residents have rights to pass through.
How is an easement created and dissolved?
Easements are created when property owners are approached for permission to use their land. If an agreement is reached, it will be set in stone with a legal document such as a deed. While the homeowner who originally grants the easement may be compensated, subsequent homeowners typically are not, although the length of an easement may vary.
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Can a party conduct activities on the property that unreasonably interfere with the other party's use of the?
Neither party can conduct activities or place obstructions on the property that unreasonably interfere with the other party’s use of the property. In this respect, there are no absolute rules of conduct. The responsibility of each party to the other and the “reasonableness” of use of the property depends on the nature of the easement…”.
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.
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.
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.
How do you terminate an easement?
For example, an easement can be terminated by written agreement between the easement holder and the easement owner.
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.
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.
How are easements created?
They can be created in deeds, easement agreements, subdivision declarations, and condominium declarations, all of which are recorded in the land records (the “Public Records”), just like deeds and mortgages. The better practice is to create an easement using an agreement or declaration, rather than a deed, because easements created in deeds typically do not adequately address all of the issues pertaining to easements. Whatever document is used, it must be executed before two witnesses and a notary public.
What is an easement in a subdivision?
In subdivisions, easements in the subdivision’s declaration of protective covenants are what provide homeowners with the rights to use the subdivision’s common areas – parks, clubhouses, pools, playgrounds, tennis courts, walking paths, horse trails, private roads, etc. C.
How long do appurtenant easements last?
Easements in gross, however, unless they are utility easements given to companies that provide such services, typically only last as long as the individual benefited by them is alive or otherwise uses the easement. However, all easements can be limited to a certain period of time, according to their terms.
How to terminate an easement?
The easement holder may unilaterally terminate the easement by executing, delivering, and recording a written release of the easement or a quit claim deed conveying the easement back to the owner of the servient estate.
How can a buyer be assured of having such access?
How can a buyer be assured of having such access? A buyer should always have the property being purchased surveyed prior to closing on that purchase. To have access without an easement, at least one boundary of the property has to coincide exactly, without gap or deviation, with the edge of a roadway, known as the right-of-way line. In other words, one boundary of the parcel and the right-of-way line have to lie on top of one another, at least for a part of the distances of the boundary and right-of-way lines. If a boundary line of the property being purchased and a right-of-way line do not coincide, the buyer needs to be certain that the property being purchased has an easement giving the buyer the legal right to cross over whatever property lies between the property being purchased and the public road. Otherwise, the owner of the intervening property could erect a fence to prevent the buyer from accessing the buyer’s property. Of course, if the buyer, as normal, plans to live on the property being purchased, that ingress and egress easement should also include the right to have utility lines and pipes, and perhaps drainage swales (ditches) cross over the land upon which the easement lies.
What happens if a right of way line and boundary line do not coincide?
If a boundary line of the property being purchased and a right-of-way line do not coincide, the buyer needs to be certain that the property being purchased has an easement giving the buyer the legal right to cross over whatever property lies between the property being purchased and the public road.
What is the legal right of a non-owner to use a specific part of another person's land for?
An easement is the legal right of a non-owner to use a specific part of another person’s land for a specific purpose.
How does easement affect property?
Whether an easement affects you and your property depends on what type of easement is on the land, how long it lasts, and whether it prevents you from doing what you want with your property.
What Is an Easement?
A property easement grants someone else the limited right to use your land for a specific purpose. For example, a common easement is one that a utility company has for placing cables, pipes, or other equipment under or over the property to allow property owners to use their utilities.
How to check if a property has an easement?
To check for an easement on the property, you can take the following steps: 1 Contact the utility companies to see if they have any easements on your property. 2 Check with the county clerk or county land records office to find out whether the prior deed shows an easement. 3 Obtain a survey of the property to see if there are any easements and where they're located. 4 Get a title company to do a title search of the property, which will uncover any easements and other burdens on the property. 5 Make sure to get a warranty deed from the owner, as it must show any easements on the property.
What are the consequences of having an easement on your property?
Whether you're the dominant or servient property of an easement, having an easement can sometimes negatively affect the value of your property. Not everyone wants to buy property with an easement on it, so the property with the easement may take longer to sell.
Why are utility easements bad?
Utility easements are often a problem because if you want to build something such as an in-ground swimming pool on your own land, you might be unable to do so if there are pipes and cables in the way. Likewise, if the utility company has an easement to erect poles or power lines, your property value could take a nosedive. s.
How to find out if a deed shows an easement?
Check with the county clerk or county land records office to find out whether the prior deed shows an easement.
Who purchases the dominant property?
The servient property owner purchases the dominant property, thereby removing the easement. The dominant easement holder gives up the easement by transferring the easement in a deed to the servient owner.
What is an easement on a property?
Easements are usually assigned for a specific use with specified parties granted access to the property. Right-of-ways don't define who can pass through the property. Both are similar and described on the same property deed.
What is easement on a deed?
An easement as described on a property deed defines public or private usage rights of a property. If you already own a property, the property deed should be in the closing paperwork.
What is an easement right of way?
Easements and Right-of-Ways. An easement allows access to property without giving the other party ownership. Many easements are for utility, maintenance or emergency access. A right-of-way allows others to go through your property. For example, California has hundreds of unmarked areas adjacent to beachfront homeowners' properties ...
How to get a description of a utility easement?
Writing to the local utility company is another way to obtain the description of specific utility easements.
Where to find deeds in a county?
Locating Records. The property deed is recorded through the county courthouse. However, the final location of the record may vary depending on the age of the record and the county's record keeping system. Most counties maintain deeds at either the Assessor's Office or the County Clerk's Office.
Can a back property owner use the front property?
The back-property owner may have a right to use part of the front owner's property for access. This easement should describe the part of the property that is accessible, which means if the driveway is the authorized easement, the back owner should not use the yard or other parts of the front property. The easement affects your full use and ...
Can you plant trees on an easement?
For example, surveyor's stakes or gas-line markers shouldn't be removed, or you might not be able to plant trees or build a structure on the easement. It's important to understand both your restrictions and rights if you own land with easements.
Why is it important to know what easements exist on your property?
In this case, it’s especially important to know what easements exist on the property so you don’t create unnecessary legal complications that interfere with the easement holder’s right to use and enjoy what’s outlined in the easement.
What is easement in land?
An easement is the legal right of a non-owner to use a part of another person’s land for a specific purpose . Road easements often come into play when someone needs to access their property. When there is no roadway between a given parcel ...
What is an affirmative easement?
Most easements that come to mind are affirmative easements: they give the easement holder the right to do something (such as use a property for ingress or egress).
Why is a parcel considered a dominant estate?
Your parcel would be the “dominant estate” because it is benefitted by the easement. The parcel over which the easement runs is known as the “servient estate.”. Even if the servient estate is sold or transferred, this does not break an appurtenant easement (even if it isn’t mentioned in the deed!). Easements in Gross.
What is the purpose of a road easement?
Road easements exist for the purpose of ingress and egress – the right to enter and exit a property.
Why do you need an easement in an agreement?
If you’re interested in creating an easement, it’s best practice to create an easement in an agreement or declaration (rather than a deed) because this will help you address all of the issues pertaining to easements.
When does prescriptive easement come into play?
However, it typically only comes into play after a set period of time. For example, prescriptive road easements may be created if you had been using a part of a neighbor’s property for access without a formal easement for the past 20 years.
Table of Contents
Easements at A Glance
- An easement is a "nonpossessory" property interest that allows the holder of the easement to have a right of way or use property that they do not own or possess. An easement doesn't allow the easement holder to occupy the land or to exclude others from the land unless they interfere with the easement holder's use. In contrast, the property owner ma...
Creation of An Easement
- 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. In limited cases, a court will create an easement by implying its existe…
Rights and Remedies Under An Easement
- As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted," as long as they do not place an unreasonable burden on the servient land. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with the easemen…
Transferability
- In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But the document transferring the dominant estate may expressly provide that the easement shall not pass with the land. Because easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferabl…
Other Legal Issues to Consider
- 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.
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 out. An ease…
Let An Attorney Ease Your Easement Concerns
- The prevalence of easements and their nonpossessory nature creates a unique set of considerations when creating, interpreting, and implementing an easement. It's essential to have a basic understanding of the way they're created, their scope and transferability, and how they're terminated. A real estate attorneywith easement experience can help set you on the right path.