This article is intended to provide a basic explanation of “easements.” This article is not intended to give the reader legal advice. Many factors including but not limited to: (a) consent; (b) recordation; and, (c) “use” all have a significant impact on the validity and scope of an easement. Consequently, this article is not intended to substitute for the advice of an attorney as to a specific problem or transaction. If the reader has a specific legal question or needs legal advice, the reader should contact an attorney.
What is an Easement? An easement is an interest in the land of another that entitles its owner to use the other’s land for a specific purpose.
An easement may be “affirmative” or “negative.” An affirmative easement is one that it entitles its owner to do certain things on the land of another. A negative easement is one that prevents a property owner from doing certain things on their own land.
Although the owner of an easement does not have title in the property in which they have an easement, an easement is an interest in real property. Therefore, the owner of an easement can enjoin (stop) wrongful interference with the easement, can recover damages that arise from any wrongful use of the easement; and, is entitled to compensation if the easement is taken by eminent domain.
TERMINOLOGY AND CLASSIFICATION
Because an easement is an interest in the land of another, there is always a burdened parcel of land. The burdened parcel of land is the parcel that is subject to the easement and is called the “servient tenement.” The parcel of land that benefits from the easement is called the “dominant tenement.”
Easements are classified as either “appurtenant” or “in gross.”
An appurtenant easement is an easement that benefits a specific parcel of land. For example, a driveway from one property over an adjacent parcel of land is an appurtenant easement, with the dominant tenement being the property using the driveway for access and the servient tenement being the parcel that the driveway is situated upon.
An easement “in gross” on the other hand is an easement that confers a personal right to a specific party to use another’s land for a specific purpose. For example, if an individual is given the right to fish on another’s land, that right might constitute an easement “in gross,” with the servient tenement (property burdened) being the land on which the in gross easement holder has been given the right to fish. However, unlike an appurtenant easement, because an easement in gross is only personal in nature it does not benefit any specific parcel of land and therefore there is no dominant tenement.
One significant distinction between an appurtenant and an easement in gross occurs upon transfer. Because an appurtenant easement benefits a specific parcel of land (the dominant tenement), an appurtenant easement attaches to the dominant tenement itself and is transferred with the dominant tenement as a matter of law, regardless of whether the easement is specifically referenced in the transfer instrument. By contrast, because an easement in gross is personal in nature and creates no interest in any specific parcel of land, an easement in gross does not automatically transfer upon the easement holder’s conveyance of real property. Instead, the holder of the easement in gross must specifically assign or transfer it.
Creation-There are various ways to create an easement. They include creation by express grant or reservation (express creation), implied grant or reservation (creation by implication), necessity, prescription, dedication, condemnation, estoppel, or court order (an equitable easement). The more common methods are briefly described below.
Express Creation-An express easement is created whenever two landowners specifically agree to create an easement. For example, an easement created by a written agreement between two neighboring landowners constitutes an express easement. An express easement can be created by any instrument capable of transferring real property, such as a deed, will, or written agreement.
Creation by Implication– An easement may be deemed to have been created by implication when evidence shows that the parties intended to create an express easement but for some reason failed. Easements by implication most often arise when a property owner conveys a portion of their land but fails to expressly reserve an easement over a portion of the transferred property (e.g. over an existing driveway) when facts suggest they intended to.
Reservation-An easement is created by reservation when the landowner conveys all or a portion of their property but retains or “reserves” the use of a certain portion of the property they conveyed. A reserved easement can be appurtenant or in gross. For example, an owner of two adjoining parcels of land might sell one parcel but reserve an easement over a portion of that parcel for continued use as a driveway. This would be an appurtenant easement. The transferring owner might also decide to reserve the right to hunt on the parcel they are transferring. The owner’s right to hunt would constitute an easement “in gross.”
Necessity– An easement by necessity may be implied when it is absolutely necessary in order to access the dominant tenement (the land to be benefited). For example, when a landowner sells one of two or more parcels of land and the parcel sold is completely landlocked, absent an expressed intent to the contrary by the parties, California law implies that the parties intended to create an easement across the grantor’s land in favor of the landlocked parcel they conveyed. To establish an easement by necessity, the owner of the dominant tenement must prove that their land is completely landlocked, making the easement absolutely necessary to access the dominant tenement. By definition, an easement by necessity is based on and requires strict necessity and therefore terminates when the easement is no longer necessary.
Prescription-A prescriptive easement is an implied easement that is created when the holder of the prescriptive easement uses the property of another for a specific purpose for five years. To establish a prescriptive easement, the prescriptive easement holder must prove that the prescriptive easement was used continuously in a manner that was open, notorious, hostile, and adverse to the owner of the servient tenement for five years.
Use-An easement may generally be used only for the purpose it was created. Although minor alterations in the use of an easement might be permitted provided they do not change the character of the easement, the use and character of an easement must remain substantially the same. Therefore, an easement owner cannot alter their use of the easement in a way that materially increases the burden on the servient tenement.
As is our recommendation for our existing clients and potential clients, legal consultation ought to be employed proactively, ideally BEFORE the transaction is consummated, to avoid future problems. It is critical for individuals to understand their potential duties and obligations BEFORE (a) agreeing to give an easement; (b) take an easement; or, (c) deciding to purchase land burdened with an easement. While the foregoing article was intended to highlight some easement characteristics, it does not begin to address all the issues one must consider.
Mr. Faoro is a partner at Last & Faoro specializing in Real Estate and Construction Law for over 25 years, assisting owners, developers, contractors and realtors in real estate and construction matters. He can be reached at (650) 696-8350, or by email at [email protected] The foregoing article is intended only to provide a general overview of some of distinguishing easement characteristics. This article is not intended to contain legal advice, is not intended to discuss or address any specific situation or problem and should not be relied on in making any legal decisions. If you have a specific legal question or need legal advice, you should contact a qualified attorney.
Dennis L. Faoro
Last & Faoro
177 Bovet Road
San Mateo, CA 94402
Tel: (650) 696-8350
Fax: (650) 696-8365