Posted by: kevensteinberg
Areas of Practice, Blog, Real Estate Law
If you grew up in a suburban neighborhood, you probably knew the house with the large utility box at the edge of it’s property. Or perhaps there were utility poles running through a few backyards. Or maybe you would frequently cross through your neighbor’s yard to get to the beach. All of these are examples of easements.
An easement is a property right that gives its holder the right to use a portion of real estate or property they do not own for a specific purpose. Easements can be complex and can be a source of legal conflict between neighbors. Whether you are looking at buying a new home, you are living on property affected by an easement, or you are an easement holder using another’s property, it is vital to understand what easements are and the responsibilities and property rights associated with them to effectively handle any issues that arise. These answers to frequently asked questions will help ease your concerns about easements.
What Types of Easements Are There?
To better understand easements on your property or easements you have rights to, there are some key terms and types of easements you should know.
- Affirmative Easement: Affirmative easements are the most common category of easement. They give the easement holder the right to do something, such as cross the property at a certain point to access their house from the main road. In other words, they allow something to happen. Affirmative easements require the property owner to allow the easement holder access to that section of property.
- Negative Easement: Negative easements prevent, prohibit or restrict certain actions. For example, a negative easement might dictate that neighbors cannot build structures more than one-story high or that they cannot construct a fence or plant trees that obstruct the view of the easement owner.
- Easement Appurtenant: Usually an affirmative easement, appurtenance easements join parcels of land or are “shared easements” and typically benefit the property of the easement holder. Examples include having a shared driveway, or a path that goes across your property and gives a homeowner behind your property access to the main road. These easements often transfer with the sale of the property.
- Easement In Gross: Easements in gross do not typically benefit a specific parcel of land, but instead benefit a non-owner individual or entity. Most utility easements are easements in gross.
- Dominant Tenement: The dominant tenement, or dominant estate, is typically the easement holder. It refers to the property that benefits from the easement. They have the right to exercise easement rights on another’s property.
- Servient Tenement: The servient tenement, or servient estate, is typically the parcel or property which is permitted to be accessed or used. They are the property owner whose land is subject to the use and easement rights of the dominant estate.
Do I Have to Pay the Property Taxes, Insurance, or Other Fees for an Easement on My Property?
When an easement is created, a fee, generally of a nominal amount, is generally paid to the property owner for the right to use the property as outlined in the easement agreement. This fee may be a one-time fee or it may be paid on a regular basis depending on the agreement.
Although they will receive payment from the easement holder, easement owners are typically responsible for any property taxes on the easement because they own the land. However, you can negotiate tax responsibility when granting an easement as well. If the easement holder is using 10% of your property, for example, you might outline in the agreement that they will be responsible for paying a 10% share of the property taxes.
Recorded easements are generally covered by the title insurance for a property.
Who Is Legally Responsible for an Easement?
While easements provide certain rights to the easement holder, or the dominant tenement, they also come with certain responsibilities. In California law, the dominant estate or easement holder is responsible for maintaining the easement. The property owner, or easement owner and servient estate, has a right to improve or repair the easement (such as by paving the road), but they are not allowed to interfere with the easement holder’s use of the easement (such as by putting up a fence across the easement). The dominant estate also has the responsibility to keep the easement in safe condition to prevent any injuries to third persons who might use the property.
How Can I Create or Obtain an Easement?
There are multiple reasons a property owner might want to create an easement. To account for these reasons, there are four basic ways an easement can be created.
- Easements by Necessity: An easement by necessity is generally created when an easement is necessary to access a landlocked piece of property. Every property owner has the right to ingress and egress, the right to enter and exit their property. If an owner’s property is surrounded by the property of others with no access to a public road, an easement will be created across another property to allow the landlocked owner access to their property and the road.
- Prescriptive Easements: Prescriptive easements can be created when an individual uses another’s property in a certain way, without permission, for an extended period of time. In California, to establish a prescriptive easement, the dominant estate must prove they have used the easement openly and notoriously for a continuous period of at least five years in a way that was hostile to the rights of the servient estate owner.
- Granted Easements: The majority of easements are created by a grant. Typically an express grant of easement will be by a deed or other agreement in which both estates agree on the location and use of the easement.
- Implied Easements: In some cases, easements are created by implying their existence based on use and circumstance even if there is no written document expressing the intent of an easement. For example, if a landowner sells a plot of land that doesn’t have road access, but fails to create an easement for ingress and egress, there is generally an implied easement for right-of-way.
How Can I Get Rid of an Easement?
Easements are generally permanent and transfer with the property to each successive owner. However, there are a few ways easements can be terminated.
- Express Agreement or Release: If an easement is no longer of use to the dominant estate or both the property owners agree that the easement is no longer necessary, they can terminate the easement through a written agreement.
- Abandonment: If the easement holder, or dominant estate, takes action to desert the easement or abandon interest in it, the easement may be terminated. However, it is important to note that simple non-use of an easement does not necessarily qualify as abandonment.
- Merger: If the dominant and servient properties come under single ownership, then the two properties merge and the easement is no longer required and is extinguished.
- End of Necessity: If an easement is created by necessity and that necessity later ceases to exist, the easement can be terminated. For example, if a public road is extended to a landlocked piece of property, the necessity for an easement across other property to reach the road ceases to exist.
- Expiration: Some easements are created to exist for only a specified period of time. For example, a temporary easement may be granted for a company to access construction work until a certain date. When the construction ends, the easement will terminate as well.
Secure Your Property Rights: Hire a California Real Estate Attorney for Your Easement Needs
Whether you are having issues with an easement on your property, you are trying to determine easements on a new property, you are in a dispute with a neighbor about the use of your or their property, or you are in the process of negotiating an easement, the experienced team at Steinberg Law can help. Our expert real estate attorneys have worked with a variety of easement cases in California real estate. They can help you draft new easement agreements, work with you to terminate easements, and assist in determining if valid easements exist on your property. If you are ever sued over an easement, Steinberg Law can represent you and fight to protect your property rights.
Whatever your California easement needs, Steinberg Law can help answer your questions, represent you, and put your mind at ease. Contact us today for the quality real estate help you need.